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POLITICAL THEORIES OF 
THE MIDDLE AGE 



POLITICAL THEORIES OF 
THE MIDDLE AGE 



BY 



OTTO GIERKE 



TRANSLATED 

WITH AN INTRODUCTION 

BY 

FREDERIC WILLIAM MAITLAND 




CAMBRIDGE 

AT THE UNIVERSITY PRESS 

1951 



s^v 



PUBLISHED BY 
THE SYNDICS OF THE CAMBRIDGE UNIVERSITY PRESS 

London Office : Bentley House, n.w. i 
American Branch : New York 

Agents for Canada, India, and Pakistan : Macmillan 






First Edition 1900 
Reprinted 1913 
1922 
1927 
1938 
1951 






Printed in Great Britain at the University Press, Cambridge 
(Brooke Crutchley, University Printer) 



CONTENTS. 

PAGE 

Translator's Introduction vii 

Analytical Summary xlvii 

Subject Matter of the Notes Ivi 

List of Authorities Ixiii 

Index to List of Authorities Ixxviii 

Political Theories of the Middle Age .... i 

Notes loi 



ERRATA. 

pp. 44, 46, 66, 67. For Leopold oj Babenberg read Leopold of 

Bebenburg. 
p. 67. The new section should be numbered VIII not VII. 
p. 150, note 158. Add to what is said of the opinions of Baldus 
the following: — 
' But in Ruhr. C. 10, 1, nr. 12, he holds that the camera imperii 
may in a secondary sense be said to belong to the Roman people; 
quia princeps repraesentat ilium populum et ille populus imperium 
etiam, mortuo principe.' 



INTRODUCTION. 



Had what is here translated, namely, a brief account of the 
political theories of the Middle Ages, appeared as a whole book, it 
would hardly have stood in need of that distorting medium, an 
English translation. Englishmen who were approaching the study 
of medieval politics, either from the practical or from the theoretical 
side, would have known that there was a book which they would 
do well to master, and many who were not professed students or 
whose interests lay altogether in modern times would have heard 
of it and have found it profitable. The elaborate notes* would have 
shewn that its writer had read widely and deeply; they would also 
have guided explorers into a region where sign-posts are too few. 
As to the text, the last charge which could be made against it 
would be that of insufificient courage in generalization, unless 
indeed it were that of aimless medievalism. The outlines are 
large, the strokes are firm, and medieval appears as an introduction 
to modern thought. The ideas that are to possess and divide 
mankind from the sixteenth until the nineteenth century — 
Sovereignty, the Sovereign Ruler, the Sovereign People, the 
Representation of the People, the Social Contract, the Natural 
Rights of Man, the Divine Rights of Kings, the Positive Law that 
stands below the State, the Natural Law that stands above the 
State — these are the ideas whose early history is to be detected, 
and they are set before us as thoughts which, under the influence of 
Classical Antiquity, necessarily shaped themselves in the course of 
medieval debate. And if the thoughts are interesting, so too are 
the thinkers. In Dr Gierke's list of medieval publicists, beside the 
divines and schoolmen, stand great popes, great lawyers, great 
reformers, men who were clothing concrete projects in abstract 



Political Theories of the Middle Age. 



vesture, men who fashioned the facts as well as the theories of 

their time. 

Moreover, Englishmen should be especially grateful to a guide 
who is perhaps at his strongest just where they must needs be 
weak: that is, among the books of the legists and canonists. An 
educated Englishman may read and enjoy what Dante or Marsiglio 
has written. An English scholar may face Aquinas or Ockham or 
even the repellent Wyclif. But Baldus and Bartolus, Innocentius 
and Johannes Andreae, them he has never been taught to tackle, 
and they are not to be tackled by the untaught. And yet they 
are important people, for political philosophy in its youth is apt to 
look like a sublimated jurisprudence, and, even when it has grown 
in vigour and stature, is often compelled or content to work with 
tools — a social contract for example — which have been sharpened, 
if not forged, in the legal smithy. In that smithy Dr Gierke is at 
home. With perfect modesty he could say to a learned German 
public ' It is not probable that for some time to come anyone will 
tread exactly the same road that I have trodden in long years of 
fatiguing toil.' 

But then what is here translated is only a small, a twentieth, 
part of a large and as yet unfinished book bearing a title which can 
hardly attract many readers in this country and for which an 
English equivalent cannot easily be found, namely Das deutsche 
Genossenschaftsrecht. Of that work the third volume contains a 
section entitled Die publicistischen Lehren des Mittelalters, and that 
is the section which is here done into English. Now though this 
section can be detached and still bear a high value, and though the 
author's permission for its detachment has been graciously given, 
still it would be untrue to say that this amputating process does no 
harm. The organism which is a whole with a life of its own, but 
is also a member of a larger and higher organism whose life it 
shares, this, so Dr Gierke will teach us, is an idea which we must 
keep before our minds when we are studying the political thought 
of the Middle Ages, and it is an idea which we may apply to his 
and to every good book. The section has a life of its own, but it 
also shares the life of the whole treatise. Nor only so ; it is 
membrum de membro. It is a section in a chapter entitled 'The 
Medieval Doctrine of State and Corporation,' which stands in a 
volume entitled ' The Antique and Medieval Doctrine of State and 



Translator' s Introduction. ix 

Corporation and its Reception in Germany' ; and this again is part 
of Das deutsche Genossenschaftsrecht. Indeed our section is a 
member of a highly organized system, and in that section, are 
sentences and paragraphs which will not yield their full meaning 
except to those who know something of the residue of the book 
and something also of the controversial atmosphere in which a 
certain Genossenschaftstheorie has been unfolding itself. This being 
so, the intervention of a translator who has read the whole book, 
who has read many parts of it many times, who deeply admires it, 
may be of service. In a short introduction, even if his own steps 
are none too sure, he may be able to conduct some of his fellow- 
countrymen towards a point of view which commands a wide 
prospect of history and human affairs. 

Staats- und Korporationslehre — the Doctrine of State and 
Corporation. Such a title may be to some a stumbling-block 
set before the threshold. A theory of the State, so it might 
be said, may be very interesting to the philosophic few and 
fairly interesting to the intelligent many, but a doctrine of Cor- 
porations, which probably speaks of fictitious personality and 
similar artifices, can only concern some juristic speculators, of 
whom there are none or next to none in this country. On second 
thoughts, however, we may be persuaded to see here no rock of 
offence but rather a stepping-stone which our thoughts should 
sometimes traverse. For, when all is said, there seems to be a | 

, genus of which State and Corporation are species. They seem to | 
be permanently organized groups of men ; they seem to be group- I 

i units ; we seem to attribute acts and intents, rights and wrongs to 
these groups, to these units. Let it be allowed that the State is a 
highly peculiar group-unit ; still it may be asked whether we 
ourselves are not the slaves of a jurist's theory and a little behind 
the age of Darwin if between the State and all other groups we fix 
an immeasurable gulf and ask ourselves no questions about the 
origin of species. Certain it is that our medieval history will go 
astray, our history of Italy and Germany will go far astray, unless 
we can suffer communities to acquire and lose the character of 
States somewhat easily, somewhat insensibly, or rather unless we 
both know and feel that we must not thrust our modern 'State- 
concept,' as a German would call it, upon the reluctant material. 
Englishmen in particular should sometimes give themselves 



Political Theories of the Middle Age. 



this warning, and not only for the sake of the Middle Ages. 
Fortunate in littleness and insularity, England could soon exhibit 
as a difference in kind what elsewhere was a difference in degree, 
namely, to use medieval terms, the difference between a com- 
munity or corporation {universitas) which does and one which 
does not 'recognize a superior.' There was no likelihood that 
the England which the Norman duke had subdued and surveyed 
would be either Staatenbund or Bundesstaat, and the aspiration 
of Londoners to have 'no king but the mayor' was fleeting. 
This, if it diminished our expenditure of blood and treasure — 
an expenditure that impoverishes — diminished also our expendi- 
ture of thought — an expenditure that enriches — and facilitated 
(might this not be said ?) a certain thoughtlessness or poverty 
of ideas. The State that En^phmen knew was a singularly 
unicellular State, and at a crirKl time they were not too well 
equipped with tried and traditional thoughts which would meet the 
case of Ireland or of some communities, commonwealths, corpora- 
tions in America which seemed to have wills — and hardly fictitious 
wills — of their own, and which became States and United States'. 
The medieval Empire laboured under the weight of an incon- 
gruously simple theory so soon as lawyers were teaching that the 
Kaiser was the Princeps of Justinian's law-books. The modern 
and multicellular British State — often and perhaps harmlessly called 
an Empire — may prosper without a theory, but does not suggest 
and, were we serious in our talk of sovereignty, would hardly 
tolerate, a theory that is simple enough and insular enough, and 
3'et withal imperially Roman enough, to deny an essentially state- 
like character to those 'self-governing colonies,' communities, 
commonwealths, which are knit and welded into a larger sovereign 
whole. The adventures of an English joint-stock company which 
happed into a rulership of the Indies, the adventures of another 
English company which while its charter was still very new had 
become the puritan commonwealth of Massachusett's Bay should 

' See the remarks of Sir C. Ilbert, The Government of India, p. 55: 'Both the 
theory and the experience were lacking which are requisite for adapting English insti- 
tutions to new and foreign circumstances. For want of such experience England was 
destined to lose her colonies in the Western hemisphere. For want of it mistakes were 
committed which imperilled the empire she was building up in the East.' The want 
of a theory about Ireland which would have mediated between absolute dependence and 
absolute independence was the origin of many evils. 



Translators Introduction. 



be enough to shew that our popular English Staatslehre if, instead 
of analyzing the contents of a speculative jurist's mind, it seriously 
grasped the facts of English history, would shew some inclination 
to become a Korporationslehre also. 

Even as it is, such a tendency is plainly to be seen in many 
zones. Standing on the solid ground of positive law and legal 
orthodoxy we confess the king of this country to be a ' corporation 
sole,' and, if we have any curiosity, ought to wonder why in the 
sixteenth century the old idea that the king is the head of a ' cor- 
poration aggregate of many*' gave way before a thought which 
classed him along with the parish parson of decadent ecclesiastical 
law under one uncomfortable rubric. Deeply convinced though 
our lawyers may be that individual men are the only 'real' and 
•natural' persons, they are comj^Ued to find some phrase which 
places State and Man upon on^^evel. ' The greatest of artificial 
persons, politically speaking, is the State ' : so we may read in an 
excellent First Book of Jurisprudence". Ascending from the legal 
plain, we are in a middle region where a sociology emulous of the 
physical sciences discourses of organs and organisms and social 
tissue, and cannot sever by sharp lines the natural history of the 
state-group from the natural history of other groups. Finally, we 
are among the summits of philosophy and observe haw a doctrine, 
which makes some way in England, ascribes to the State, or, more 
vaguely, the Community, not only a real will, but even 'the' real 
will, and it must occur to us to ask whether what is thus affirmed 
in the case of the State can be denied in the case of other organized 
groups : for example, that considerable group the Roman Catholic 
Church. It seems possible to one who can only guess, that even 
now-a-days a Jesuit may think that the will of the Company to 
which he belongs is no less real than the will of any State, and, if 
the reality of this will be granted by the philosopher, can he pause 
until even the so-called one-man-company has a real will really 
distinct from the several wills of the one man and his six humble 
associates ? If we pursue that thought, not only will our philo- 
sophic Staatslehre be merging itself in a wider doctrine, but we 
shall already be deep in the Genossenschaftstheorie. In any case, 
however, the law's old habit of co-ordinating men and 'bodies 

' A late instance of this old concept occurs in Plowden's Commentaries, 234. 
' Pollock, First Book of Jurisprudence, 115. 



xii Political Theories of the Middle Age. 

politic' as two kinds of Persons seems to deserve the close attention 
of the modern philosopher, for, though it be an old habit, it has 
become vastly more important in these last years than it ever was 
before. In the second half of the nineteenth century corporate 
groups of the most various sorts have been multiplying all the 
world over at a rate that far outstrips the increase of ' natural 
persons,' and a large share of all our newest law is law concerning 
corporations'. Something not unworthy of philosophic discussion 
would seem to lie in this quarter : either some deep-set truth which 
is always bearing fresh fruit, or else a surprisingly stable product of 
mankind's propensity to feign. — Howbeit, this rare atmosphere we 
do not easily breathe and therefore will for a while follow a lower 
road. 

I. 

A large part in the volume that lies before the translator is 
played by 'the Reception.' When we speak of the Renaissance 
and the Reformation we need not be at pains to name what was 
reformed or what was born anew, and even so a German historian 
will speak of the Reception when he means the Reception of 
Roman law. Very often Renaissance, Reformation and Reception 
will be set before us as three intimately connected and almost 
equally important movements which sever modern from medieval 
history. Modern Germany has attained such a pre-eminence 
in the study of Roman law, that we in England may be pardoned 
for forgetting that of Roman law medieval Germany was innocent 
and ignorant, decidedly more innocent and more ignorant than 
was the England of the thirteenth century. It is true that in 
Germany the theoretical continuity of the Empire was providing 
a base for the argument that the law of Justinian's books was or 
ought to be the law of the land ; it is also true that the Corpus 
luns was furnishing weapons useful to Emperors who were at strife 
with Popes ; but those weapons were fashioned and wielded chiefly 
by Italian hands, and the practical law of Germany was as 
German as it well could be. Also-and here lay the possibility of 

■ In 1857 an American judge went the length of saying • It is probably true that more 
corporations were created by the legislature of Illinois at its la^t session ^ale."^ 

I^L:^^.;:^^: ''' — - -^ P-' century.^ -C 



Translator' s Introduction. xiii 

a catastrophe — it was not learned law, it was not taught law, it was 
far from being Juristenrecht. Englishmen are wont to fancy that 
the law of Germany must needs savour of the school, the lecture 
room, the professor ; but in truth it was just because German law 
savoured of nothing of the kind, but rather of the open air, oral 
tradition and thoroughly unacademic doomsmen that the law of 
Germany ceased to be German and that German law has had to be 
disinterred by modern professors. Of the geographical and histori- 
cal causes of the difference we need not speak, but in England we 
see a very early concentration of justice and then the rapid growth 
of a legal profession. The Year Books follow and the Inns of Court 
and lectures on English law and scholastic exercises and that 'call to 
the bar' of the Inn which is in fact an academically earned degree. 
Also long before Germany had universities, Roman law was being 
taught at Oxford and Cambridge, so that it would not come 
hither with the glamour of the Renaissance. A certain modest 
place had been assigned to it in the English scheme of life ; some 
knowledge of it was necessary to the students of the lucrative law 
of the Church, and a few civilians were required for what we 
should call the diplomatic service of the realm. But already in 
the fourteenth century Wyclif, the schoolman, had urged that if 
law was to be taught in the English universities it ought to be 
English law. In words which seem prophetic of modern ' Ger- 
manism' he protested that English was as just, as reasonable, as 
subtle, as was Roman jurisprudence*. 

Thus when the perilous time came, when the New Learning 
was in the air and the Modern State was emerging in the shape of 
the Tudor Monarchy, English law was and had long been lawyers' 
law, learned law, taught \di.v!, Juristenrecht. Disgracefully barbarous, 
so thought one enlightened apostle of the New Learning. Reginald 
Pole — and his advice was brought to his royal cousin — was for 
sweeping it away. In so many words he desired that England 
should ' receive' the civil law of the Romans : a law so civil that 
Nature's self might have dictated it and a law that was being re- 
ceived in all well governed lands'. We must not endeavour to tell 

1 Wyclif, De Officio Regis (ed. Pollard and Sayle, 1887), p. 193: ' Sed non credo 
quod plus viget in Romana civilitate subtilitas racionis sive iusticia quam in civilitate 
Anglicana.' 

» Starkey's England (Early Eng. Text Soc. 1878), 192—5. 



xiv Political Theories of the Middle Age 

the story of the danger that beset English law when the future 
Cardinal Archbishop was speaking thus : a glance towards Scot- 
land would shew us that the danger was serious enough and would 
have been far more serious but for the continuous existence of the 
Inns of Court, and that indoctissimum genus doctissimorum homt- 
num which was bred therein. Then late in the sixteenth century 
began the wonderful resuscitation of medieval learning which 
attains its completion in the books and acts of Edward Coke. 
The political side of this movement is the best known. Anti- 
quarian research appears for a while as the guardian and renovator 
of national liberties, and the men who lead the House of Commons 
are becoming always more deeply versed in long-forgotten records. 
However, be it noted that even in England a certain amount of 
foreign theory was received, and by far the most remarkable 
instance is the reception of that Italian Theory of the Corporation 
of which Dr Gierke is the historian, and which centres round the 
phrase persona ficta. It slowly stole from the ecclesiastical courts, 
which had much to say about the affairs of religious corporations' 
into our temporal courts, which, though they had long been 
dealing with English group-units, had no home-made theory to 
oppose to the subtle and polished invader. This instance may 
help us to understand what happened in Germany, where the 
native law had not reached the doctrinal stage of growth, but was 
still rather ' folk law' than lawyers' law and was dissipating itself 
in countless local customs. 

Italian doctrine swept like a deluge over Germany. The 
learned doctors from the new universities whom the Princes called 
to their councils, could explain everything in a Roman or would-be 
Roman sense. Those Princes were consolidating their powers 
into a (by Englishmen untranslatable) Landeshoheit -. something 
that was less than modern sovereignty, for it still would have the 
Empire above it, but more than feudal seignory since classical 
thoughts about 'the State' were coming to its aid. It is 
noticeable that, except in his hereditary dominions, the Emperor 
profited little by that dogma of continuity which served as an 
apology for the Reception. The disintegrating process was so far 
advanced that not the Kaiser but the FUrst appeared as 'the 
Prmce of political theory and the Princeps of the Corpus luris 
The doctors could teach such a prince much that was to his 



Translatoi^s Introduction. xv 

advantage. Beginning late in the fifteenth century the movement 
accomplished itself in the sixteenth. It is catastrophic when 
compared with the slow and silent process whereby the customary 
law of northern France was partially romanized. No legislator 
had said that Roman law had been or was to be received in 
Germany; the work was done not by lawgivers but by lawyers, 
and from age to age there remained some room for controversy as 
to the exact position that the Corpus luris occupied among the 
various sources of law actual and potential. Still the broad fact 
remains that Germany had bowed her neck to the Roman yoke. 

In theory what was received was the law of Justinian's books. 
In practice what was received was the system which the Italian 
commentators had long been elaborating. Dr Gierke frequently 
insists that this is an important difference. In Italy the race of 
glossators who were sincerely endeavouring to discover the 
meaning of classical texts had given way to a race of commentators 
whose work was more or less controlled by a desire for practically 
acceptable results, and who therefore were disposed to accommo- 
date Roman law to medieval life. Our author says that especially 
in their doctrine of corporations or communities there is much 
that is not Roman, and much that may be called Germanic. This 
facilitated the Reception : Roman law had gone half-way to meet 
the facts that it was to govern. Then again, at a later time the 
influence of what we may call the 'natural' school of jurists 
smoothed away some of the contrasts between Roman law and 
German habit. If in the eyes of an English lawyer systems of 
Natural Law are apt to look suspiciously Roman, the modern 
Romanist will complain that when and where such systems were 
being constructed concrete Rome was evaporating in abstract 
Reason, and some modern Germanists will teach us that ' Nature 
Right' often served as the protective disguise of repressible but 
ineradicable Germanic ideas. 

With the decadence of Nature Right and the advent of 'the 
historical school' a new chapter began. Savigny's teaching had 
two sides. We are accustomed to think of him, and rightly, as the 
herald' of evolution, the man who substitutes development for 
manufacture, organism for mechanism, natural laws for Natural 
Law, the man who is nervously afraid lest a code should impede 
the beautiful processes of gradual growth. But then he was also 



xvi Political Theories of the Middle Age. 

the great Romanist, the great dogmatist, the expounder of classical 
texts according to their true — which must be their original — intent 
and meaning. There was no good, he seemed to say, in playing at 
being Roman. If the Common Law of Germany was Roman law, 
it ought to be the law of the Digest, not the law of glossators or 
commentators or 'natural' speculators. This teaching, so we are 
told, bore fruit in the practical work of German courts. They 
began to take the Corpus luris very seriously and to withdrav;^ 
concessions that had been made — some will say to national life 
and modern fact, others will say to slovenly thought and slipshod 
practice. 

But that famous historical school was not only a school of 
historically minded Romanists. It was also the cradle of Ger- 
manism. Eichhorn and Grimm stood by Savigny's side. Every 
scrap and fragment of old German law was to be lovingly and 
scientifically recovered and edited. Whatever was German was to 
be traced through all its fortunes to its fount. The motive force in 
this prolonged effort— one of the great efforts of the nineteenth 
century — was not antiquarian pedantry, nor was it a purely dis- 
interested curiosity. If there was science there was also love. At 
this point we ought to remember, and yet have some difficulty in 
remembering, what Germany, burdened with the curse of the 
translated Imperium, had become in the six centuries of her 
agony. The last shadow of political unity had vanished and had 
left behind a 'geographical expression,' a mere collective name for 
some allied states. Many of them were rather estates than states ; 
most of them were too small to live vigorous lives ; all of them 
were too small to be the Fatherland. Much else besides blood, 
iron and song went to the remaking of Germany. The idea of a 
Common Law would not die. A common legislature there might 
not be, but a Common Law there was, and a hope that the law of 
Germany might someday be natively German was awakened. 
Then in historical retrospect the Reception began to look like 
disgrace and disaster, bound up as cause and effect with the forces 
that tore a nation into shreds. The people that defied the tyranny 
of living popes had fallen under the tyranny of dead emperors 
unworthily reincarnate in petty princelings. The land that saw 
Luther burn one 'Welsh' Corpus luris had meekly accepted 
another. It seemed shameful that Germans, not unconscious of 



Translator's Introdtiction. 



their mastery of jurisprudence, should see, not only in England, 
but in France and even the France of Napoleon's Code the 
survival of principles that might certainly be called Germanic, but 
could not be called German without a sigh. Was not ' a daughter 
of the Salica,' or a grand-daughter, reigning over the breadth of 
North America ? And then, as might be expected, all manner of 
causes and parties sought to suck advantage out of a patriotic 
aspiration. The socialist could denounce the stern and bitter 
individualism, the consecrated selfishness, of the alien slave-owners' 
law, and the Catholic zealot could contrast the Christiano-German 
law of Germany's great days with the Pagano-Roman law in which 
disruptive Protestantism had found an unholy ally. 

In all soberness, however, it was asserted that old German law, 
blighted and stunted though it had been, might yet be nursed and 
tended into bearing the fruit of sound doctrine and reformed 
practice. The great men were neither dreamers nor purists. 
Jacob Grimm once said that to root out Roman ideas from 
German law would be as impossible as to banish Romance words 
from English speech. The technical merits of Roman law were 
admitted, admired and emulated. Besides Histories of German 
Law, Systems were produced and ' Institutes.' The Germanist 
claimed for his science a parity of doctrinal rank with the science 
of the Romanist. He too had his theory of possession ; he too 
had his theory of corporations; and sometimes he could boast 
that, willingly or unwillingly, the courts were adopting his con- 
clusions, though they might attain the Germanic result by the 
troublesome process of playing fast and loose with Ulpian and his 
fellows. 

Happier days came. Germany was to have a Civil Code, or 
rather, for the title at least would be German, a Biirgerliches 
Gesetzbuch. Many years of keen debate now lie behind the most 
carefully considered statement of a nation's law that the world has 
ever seen. Enthusiastic Germanists are not content, but they have 
won something and may win more as the work of interpretation pro- 
ceeds. What, however, concerns us here is that the appearance of 
' Germanistic ' doctrines led to controversies of a new and radical 
kind. It became always plainer that what was in the field was not 
merely a second set of rules but a second and a disparate set of ideas. 
Between Romanist and Germanist, and again within each school, 

M. b 



Political Theories of the Middle Age. 



the debate took a turn towards what we might call an ideal 
morphology. The forms of legal thought, the 'concepts' with 
which the lawyer * operates," were to be described, delimited, com- 
pared. In this work there was sometimes shewn a delicacy of 
touch and a subtlety of historical perception, of which in this 
country we, having no pressing need for comparisons, can know 
little, especially if our notion of an analytical jurisprudence is 
gathered from Austin's very ' natural ' exploits. Of special interest 
to Englishmen should be the manner in which out of the rude 
material of old German law the Germanists will sometimes re- 
construct an idea which in England needs no reconstruction since 
it is in all our heads, but which bears a wholly new value for us 
when we have seen it laboriously composed and tested. 

II. 

At an early moment in the development of Germanism a 
Theory of the Corporation, which gave itself out to be the 
orthodox Roman Theory and which Savigny had lately defined 
in severe outline, was assailed by Georg Beseler who lived to be 
a father among Germanists^ You will never, he said in effect, 
force our German fellowships, our German Genossenschaften, into 
the Roman scheme : we Germans have had and still have other 
thoughts than yours. Since then the Roman Corporation {uni- 
versitas) has been in the crucible. Romanists of high repute have 
forsaken the Savignian path ; Ihering went one way, Brinz another, 
and now, though it might be untrue to say that there are as many 
doctrines as there are doctors, there seems to be no creed that is 
entitled to give itself the airs of orthodoxy. It is important to 
remember that the materials which stand at the Romanist's dis- 
posal are meagre. The number of texts in the Digest which, even 
by a stretch of language, could be said to express a theory of 
Corporations is extremely small, and as to implied theories it is 
easy for different expositors to hold different opinions, especially if 
they feel more or less concerned to deduce a result that will be 
I tolerable in modern Germany. The admission must be made that 
^ there is no text which directly calls the universitas a persona, and 
* still less any that calls \t persona ficta* . 

' Beseler, Volksrecht und Juristenrecht, Leipzig, 1843, pp. 158—194. 

« It does not seem to be proved that the Roman jurists went beyond the 'personae 



Translator' s Introduction. xix 

According to Dr Gierke, the first man who used this famous 
phrase was Sinibald Fieschi, who in 1243 became Pope Innocent IV.' 
More than one generation of investigators had passed away, indeed 
the whole school of glossators was passing away, before the Roman 
texts would yield a theory to men who lived in a Germanic en- 
vironment, and, when a theory was found, it was found by the 
canonists, who had before their eyes as the typical corporation, no 
medieval city, village or gild, but a collegiate or cathedral church. 
In Dr Gierke's view Innocent, the father of ' the Fiction Theory,' 
appears as a truly great lawyer. He really understood the texts ; 
the head of an absolute monarchy, such as the catholic Church was 
tending to become, was the very man to understand them ; he 
found the phrase, the thought, for which others had sought in vain. 
The corporation is a person ; but it is a person by fiction and only 
by fiction. Thenceforward this was the doctrine professed alike by 
legists and canonists, but, so our author contends, it never com- 
pletely subdued some inconsistent thoughts of Germanic origin 
which found utterance in practical conclusions. In particular, to 
mention one rule which is a good touchstone for theories, Innocent, 
being in earnest about the mere fictitiousness of the corporation's 
personality and having good warrant in the Digest', proclaimed 
that the corporation could commit neither sin nor delict. As pope 
he might settle the question of sin, and at all events could prohibit 
the excommunication of an universitas', but as lawyer he could not 
convince his fellow lawyers that corporations must never be charged 
with crime or tort. 

Then Savigny is set before us as recalling courts and lawyers 
from unprincipled aberrations to the straight but narrow Roman 
road. Let us bring to mind a few of the main traits of his 
renowned doctrine. 



vice fungitur ' of Dig. 46, i, 22. Any modern text-book of Pandektenrecht will introduce 
its reader to the controversy, and give numerous references. Here it may be enough to 
name Ihering, Brinz, Windscheid, Pemice, Dernburg and Regelsberger as prominent 
expositors of various versions of the Roman theory. Among recent discussions may 
be mentioned, Kniep, Societas Publicanorum, 1896 ; Kuhlenbeck, Von den Pandekten 
zum biirgerlichen Gesetzbuch (1898), I. 169 if. 

' Gierke, Genossenschaftsrecht, III. 279. 

» Dig. 4, 3, 15 § 1. 

* Gierke, Genossenschaftsrecht, III. 280. 

b2 



Political Theories of the Middle Age. 



Besides men or 'natural persons,' the law knows as 'subjects ' 
of proprietary rights certain fictitious, artificial or juristic persons, 
and as one species of this class it knows the corporation. We 
must carefully sunder this ideal person from those natural persons 
who are called its members. It is capable of proprietary rights ; 
but it is incapable of knowing, intending, willing, acting. The 
relation between it and the corporators may best be compared to 
that between pupillus and tutor, or that between a lunatic and the 
committee of his estate. By the action of its guardians it can 
acquire property, and, if it is to take the advantage of contracts, it 
must take the burden also. To allow it possession is difficult, for 
possession is matter of fact; still after hesitation the Roman 
lawyers made this concession. An action based upon unjust 
enrichment may lie against it; but it must not be charged with 
delict. To attempt to punish it is. both absurd and unjust, though 
the State may dissolve a noxious group in an administrative way. 
Being but a fiction of the law, its personality must have its com- 
mencement in some authoritative act, some declaration of the 
State's will. Finally, it may continue to exist though it no longer 
has even one member. 

For the last three centuries and more Englishmen have been 
repeating some of the canonical phrases, but Dr Gierke would 
probably say that we have never taken them much to heart. We 
are likely therefore to overlook some points in the Savignian 
theory which seem serious to those who have not raised con- 
venient inconsequence to the level of an intellectual virtue. In 
particular, having made 'the corporation itself a mindless being 
that can do no act, we must not think of the organized group of 
corporators as an 'agent' appointed by a somewhat inert 'prin- 
cipal.' Were the corporation 'itself capable of appointing an 
agent, there would be no apparent reason why ' itself should not 
do many other acts. Savigny is far more skilful. It is not in 
agency but in guardianship of the Roman kind that he finds the 

• Germans distinguish between the Subject and the Object of a right. If Styles owns 
a horse, Styles is the Subject and the horse the Object of the right. 'ITien if we ascribe 
the ownership of the horse to the Crown, we make the Crown a, Subject ; and then we 
can speak of the Crown's Subjectivity. And so in political theory, if we ascribe 
Sovereignty to the Crown or the Parliament or the People, we make the Crown, 
Parliament or People the Subject of Sovereignty. The reader of the following pages 
may be asked to remember this not inconvenient usage. 



Translator' s Introduction. xxi 

correct analogy. Those who wish to make fun of the theory say 
that it fills the legal world with hopeless idiots and their State- 
appointed curators ; but, if we mean logic, we must be careful to 
see that our 'corporation itself — that Ding an sick which some- 
how or another lies beyond the phenomenal group of corporators' 
— does no act, speaks no word, thinks no thought, appoints no 
agent. Also we may observe, and in history this is important, that 
this theory might play into the hands of a Prince or princeling 
inclined to paternal despotism. Really and truly the property of a 
corporation — for example a city or university — belongs to no real 
person or persons, and over the doings of guardians and curators 
the State should exercise, no mere jurisdiction, but administrative 
control. Of 'natural rights' there can here be no talk, for 'artificial 
persons ' can have no natural rights. Furthermore, the strict con- 
finement of the persona ficta within the sphere of Private Law may 
escape notice in a country where (to use foreign terms) 'publicistic' 
matter has been wont to assume ' private-rightly ' form in a fashion 
that some would call shamefully medieval but others enviably 
Germanic. The Savignian corporation is no 'subject' for 'liberties 
and franchises ' or ' rights of self-government.' Really and ' pub- 
licistically ' it can hardly be other than a wheel in the State's 
machinery, though for the purposes of Property Law a personifi- 
cation of this wheel is found to be convenient. Lastly, some 
popular thoughts about 'body' and 'members' must needs go 
overboard. The guardian is no ' member ' of his ward ; and how 
even by way of fiction could a figment be composed of real men ? 
We had better leave body and members to the vulgar. 

Savigny wrote on the eve of a great upheaval. A movement 
in which England played a prominent and honourable part was 
thrusting the joint-stock company to the very forefront of those 
facts whence a theory of corporations must draw its sustenance. 
Whatever may be said of municipal and other communes, of 
universities and colleges and churches, the modern joint-stock 
company plainly resents any endeavour to 'construe' it as a piece 
of the State's mechanism, though we may profitably remember that 

^ Pollock, Contract, ed. 6, p. io8 ; ' If it is allowable to illustrate one fiction by 
another, we may say that the artificial person is a fictitious substance conceived as 
supporting legal attributes.' But this happy phrase is not by itself an adequate 
expression of Sir F. Pollock's view. See the context. 



Political Theories of the Middle Age. 



early and exemplary specimens, notably the Bank of England and 
the East India Company, were closely related to the State. More- 
over, the modern joint-stock company, if it is an universitas, is 
exceedingly like a societas, a partnership, a Gesellschaft, and this 
resemblance seemed to threaten one of the securest results of legal 
science. There were a few phrases in the Digest capable of per- 
plexing the first glossators, but in clear words Innocent IV. had 
apprehended the distinction: the universitas is a person; the 
societas is only another name, a collective name, for the socii^. 
Since then jurisprudence had kept or endeavoured to keep the two 
in very different boxes, in spite of the efforts of Natural Law to 
break down the partition. In a system of Pandektenrecht the 
universitas appeared on an early page under the rubric 'Law of 
Persons,' while the societas was far away, probably in another 
volume, for a Partnership is a kind of Contract and Contract is 
a kind of Obligation. Here, however, was a being whose very 
name of Aktiengesellschaft strongly suggested partnership, and yet 
the German legislators who had designed its mould had almost 
certainly meant that it should exhibit personality or legal 'sub- 
jectivity,' though they had not said this in so many words. Was it 
universitas, or societas, or neither, or both .' Could a mean term be 
found between unity and plurality? What was, what could be, 
the 'juristic nature' of a shareholder's 'share,' as we call it in 
England? Was it any conceivable form of co-ownership, any 
' real ' right in the company's lands and goods ? Could it, on the 
other hand, be reduced to the mere benefit of a contract between 
the shareholder and the artificial person .' Ideal walls were rocking 
and material interests were at stake. Was it, for example, decent 
of the Prussian government to tax first the income of the company 
and then the dividends of the shareholders and yet disclaim all 
thought of double taxation"? 

Pausing here for a moment, we may notice that an Englishman 

' Gierke, Genossenschiiftsrecht, iii. 185. 

' Dernburg, Pandekten, ed. 6, I. 146. The German lawyer has had a good many 
different types of association to consider, such as the Gesellschaft des biirgerlkhen Sechtes, 
the offene Handelsgesellschaft, the KommandUgesellschaft, the KovtmandUgesellschaft auf 
Aktien, and the Aktiengesellschaft; and, so I understand, the legislature had not explicitly 
told him which, if any, of these types were to display personality. So a large room was 
left for rival ' constructions.' 



Translator' s Introduction. 



will miss a point in the history of political theory unless he knows 
that in a strictly legal context the Roman societas, the French 
social, and the German Gesellschaft should be rendered by the 
English partnership and by no other word. Also he should know 
that, just as the English lawyer maintains that our English ' firm ' 
is a mere collective name for the partners and displays no ' artificial 
personality,' so also he will be taught in Germany that the Roman 
societas and the German Gesellschaft are not 'juristic persons.' 
Now-a-days it will perhaps be added that the German Gesellschaft 
— and the same would be said of the English partnership — shews a 
tendency to develop towards corporate organization, from which 
tendency the extremely 'individualistic' societas of the Romans 
was wholly free\ That is a small matter ; but it is a great matter 
that before the end of the Middle Ages the Roman word for 
partnership was assuming a vastly wide meaning and, under the 
patronage of Ciceronian comparisons^, was entering the field of 
politics. ' Human Society ' should be the partnership of mankind ; 
' Civil Society ' should be the partnership of citizens ; ' the Origin 
of Civil Society ' should be a Social Contract or contract of part- 
nership. If Rousseau writes of le Contrat Social and Pothier of 
le Contrat de Soci^ti, there should be, and there is, a link between 
their dissimilar books, and a German can say that both discussed 
the Gesellschaftsvertrag, the one with passion, the other with erudi- 
tion. Here then we face one of the historical problems that 
Dr Gierke raises. How came it about that political theory, which 
went to the lawyers for most of its ideas, borrowed the contract of 
partnership rather than the apparently far more appropriate act of 
incorporation ? In brief the answer is that the current doctrine of 
corporations, the classical and Innocentian doctrine, stood beneath 
the level of philosophic thought. A merely fictitious personality, 
created by the State and shut up within the limits of Private Law, 
was not what the philosopher wanted when he went about to 
construct the State itself. 

And then political philosophy reacted upon legal theory. When 
the State itself had become a merely collective unit — a sum of 
presently existing individuals bound together by the operation of 
their own wills — it was not likely that any other group would seem 
capable of withstanding similar analysis. Where philosophy and 

1 Dernburg, loc. cit. ^ See below, p. 187. 



Political Theories of the Middle Age. 



jurisprudence met in such systems of Natural Law as were fashion- 
able in the eighteenth century, the wiiversitas was lowered to the 
rank of the societas, or (but this was the same process) the societas 
was raised to the rank of the universitasK Both alike exhibited a 
certain unity in plurality; both alike might be called 'moral 
persons ' ; but in the one case as in the other this personality was 
to be thought of as a mere labour-saving device, like stenography 
or the mathematician's symbols. What we may call the Bracket 
Theory or Expansible Symbol Theory of the Corporation really 
stands in sharp contrast with the Fiction Theory as Savigny 
conceived it, though sometimes English writers seem to be speaking 
of the one and thinking of the other. The existing corporators, 
who in the one scheme are mere guardians for a somewhat 
that the State has instituted, become in the other scheme the 
real 'subjects' of those rights and duties that are ascribed to 
the corporation, though legal art usually keeps these 'subjects' 
enclosed within a bracket. However, despite this tendency of a 
'natural' jurisprudence — a tendency which seems to have left an 
abiding mark in the legal terminology of Scotland — the Romanists 
of Germany had been holding fast the doctrine that the universitas 
is, while the societas is not, a person, when the joint-stock company, 
a new power in the theoretic as in the economic world, began to 
give trouble. That the Aktiengesellsckaft was a corporation was 
generally admitted ; but of all corporations a joint-stock company 
is that which seems to offer itself most kindly to the individualistic 
analyst. When all is said and done, and all due praise has been 
awarded to the inventors of a beautiful logarithm, are not these 
shareholders, these men of flesh and blood, the real and only 
sustainers of the company's rights and duties? So great a Romanist 
as Ihering* trod this 'individualistic' or ' collectivistic ' path, and in 
America where law schools flourish, where supreme courts are 
many and the need for theory is more urgent than it is in England, 
highly interesting attempts have been made to dispel the Fiction, 
or rather to open the Bracket and find therein nothing but 
contract-bound men'. Contract, that greediest of legal categories, 

• Gierke, Johannes Althusius, 103. 

' See especially Geist des rom. Rechts, vol. in. , p. 343. 

' Dissatisfaction with the Fiction^r, as Americans sometimes say, with 'the 
Entity'— is expressed in some well-known text-books, e.g., Taylor, Law of Private 
Corporations, § 60 ; Morawetz, Law of Private Corporations, ch. i. 



Translator's Introduction. xxv 

which once wanted to devour the State, resents being told that it 
cannot painlessly digest even a joint-stock company. Maine's 
famous sentence about Contract and Status might indeed be boldly 
questioned by anyone who remembered that, at least for the 
philologian, the Roman Status became that modern State, Etat, 
Staat which refused to be explained by Contract into a mere ' Civil 
Society.* Few words have had histories more adventurous than 
that of the word which is the State of public and the estate of our 
private law, and which admirably illustrates the interdependence 
that exists between all parts of a healthily growing body of 
jurisprudence. Still, though the analytic powers of Contract are 
by no means what they once seemed to be, many will think them 
equal to the task of expanding what they might call the Corpora- 
tion Symbol. 

It was in a Germany that was full of new ideas and new hopes 
that a theory was launched which styled itself 'the German 
Genossensckaftstheorie.' Even the hastiest sketch of its environ- 
ment, if it notices the appearance of the joint-stock company, 
should give one word to the persistence in Germany of agrarian 
communities with world-old histories, to the intricate problems 
that their dissolution presented, and to the current complaint that 
Roman law had no equitable solution for these questions and had 
done scant justice to the peasant. Nor should the triumphs of 
biological science be forgotten. A name was wanted which would 
unite many groups of men, simple and complex, modern and 
archaic; and Genossenschaft was chosen. The English translator 
must carefully avoid Partnership ; perhaps in our modern usage 
Company has become too specific and technical; Society also is 
dangerous; Fellowship with its slight flavour of an old England 
may be our least inadequate word. Beginning with Beseler's 
criticism of Savigny, the theory gradually took shape, especially in 
Dr Gierke's hands, and a great deal of thought, learning and con- 
troversy collected round it. Battles had to be fought in many 
fields. The new theory was to be philosophically true, scientifically 
sound, morally righteous, legally iniplicit in codes and decisions, 
practically convenient, historically destined, genuinely German, and 
perhaps exclusively Germanistic*. No, it seems to say, whatever 
1 However, some Romanists of repute have asserted their right to adopt and have 
adopted this theory. See in particular Regelsberger, Pandekten, vol. i. p. 289 ff. See 
also Dernburg, Pandekten, § 59. 



XXVI 



Political Theories of the Middle Age. 



the Roman universitas may have been— and Dr Gierke is for 
pinning the Roman jurists to Savignianism— our German Fellow- 
ship is no fiction, no symbol, no piece of the State's machinery, no 
collective name for individuals, but a living organism and a real 
person, with body and members and a will of its own. Itself can 
will, itself can act ; it wills and acts by the men who are its organs 
as a man wills and acts by brain, mouth and hand. It is not a 
fictitious person ; it is a Gesammtperson, and its will is a Gesammt- 
■wille ; it is a group-person, and its will is a group-will'. 

This theory, which we might call Realism, may seem to carry 
its head among the clouds, though no higher perhaps than the 
Fiction Theory ; but a serious effort has been made to give it feet 
that walk upon the earth. In one long book" Dr Gierke has in 
great detail argued his case throughout the whole domain of 
practicable modern law, contending, not indeed that all German 
'authority' (as an English lawyer would say) is on his side, but 
that he has the support of a highly respectable body of authority, 
express and implied, and that legislatures and tribunals fall into 
self-contradiction or plain injustice when they allow themselves to 
be governed by other theories. Nothing could be more concrete 
than the argument, and, though it will sometimes shew an affection 
for ' the German middle age ' and a distrust of ancient Rome, it 
claims distinctively modern virtues : for instance, that of giving of 
the shareholder's 'share' the only lawyerly explanation that will 
stand severe strain. Then in another book our author has been 
telling the history of German Fellowship Law*. 

Let us try to imagine — we are not likely to see — a book with 
some such title as English Fellowship Law, which in the first place 

^ The works of Dr Gierke which deal with this matter are (i) Das deutsche 
Genossenschaftsrecht, whereof three volumes were published in 1868, 1873, and 1881 ; 
(2) Die Genossenschaftstheorie und die deutsche Rechtsprechung, 1887; (3) The first 
volume of Deutsches Privatrecht, 1895, which contains a more succinct and more recent 
statement ; (4) The monograph on Johannes Althusius, 1880, which should be well 
known to all students of political theory. Those who would rather begin their study of 
the realistic theory in French than in German may be sent to A. Mestre, Les Personnes 
Morales, 1899. French lawyers have been conservative, and Savignianism was in 
harmony with the spirit of the Codes ; nevertheless the doctrine of the real group-will is 
finding disciples. The only English statement that I have seen of this theory is by Ernst 
Freund, The Legal Nature of Corporations, University Press, Chicago, 1897. 

* This is the Genossenschaftstheorie of 1887. 

* This is the Genossenschaftsrecht of 1868 — 73 — 81. 



Translator's Introduction. xxvii 

described the structure of the groups in which men of English race 
have stood from the days when the revengeful kindred was pur- 
suing the blood feud to the days when the one-man-company is 
issuing debentures, when parliamentary assemblies stand three 
deep above Canadian and Australian soil and 'Trusts and Cor- 
porations' is the name of a question that vexes the great 
Republic of the West. Within these bounds lie churches, and 
even the medieval church, one and catholic, religious houses, 
mendicant orders, non-conforming bodies, a presbyterian system, 
universities old and new, the village community which Germanists 
revealed to us, the manor in its growth and decay, the township, 
the New England town, the counties and hundreds, the chartered 
boroughs, the gild in all its manifold varieties, the inns of court, 
the merchant adventurers, the militant "companies' of English 
condottieri who returning home help to make the word ' company ' 
popular among us, the trading companies, the companies that 
become colonies, the companies that make war, the friendly 
societies, the trade unions, the clubs, the group that meets at 
Lloyd's Coffee-house, the group that becomes the Stock Exchange, 
and so on even to the one-man-company, the Standard Oil Trust 
and the South Australian statutes for communistic villages. The 
English historian would have a wealth of group-life to survey 
richer even than that which has come under Dr Gierke's eye, 
though he would not have to tell of the peculiarly interesting civic 
group which hardly knows whether it is a municipal corporation or 
a sovereign republic. And then we imagine our historian turning 
to inquire how Englishmen have conceived their groups : by what 
thoughts they have striven to distinguish and to reconcile the 
manyness of the members and the oneness of the body. The 
borough of the later middle ages he might well regard with 
Dr Gierke as a central node in the long story. Into it and out 
from it run most of the great threads of development, economic and 
theoretical. The borough stretches one hand back to the village 
community and the other forward to freely formed companies of 
all sorts and kinds. And this Dr Gierke sets before us as the point 
at which the unity of the group is first abstracted by thought and 
law from the plurality, so that 'the borough' can stand out in 
contrast to the sum of existing burgesses as another person, but 
still as a person in whom they are organized and embodied. 



Political Theories of the Middle Age. 



To his medieval Germans Dr Gierke attributes sound and 
wholesome thoughts, and in particular a deep sense of the organic 
character of all permanent groups great and small. Not that, 
according to him, their thoughts were sharply defined : indeed he 
has incurred the dissent of some of his fellow Germanists by 
refusing to carryback to the remotest time the distinction between 
co-ownership and corporate ownership. In deeply interesting 
chapters he has described the differentiating process which gives 
us these two ideas. That process was prospering in the German 
towns when the catastrophe occurred. When German law was 
called upon to meet the alien intruder, it had reached 'the stage of 
abstraction,' but not ' the stage of reflection.' It had its Korper- 
schaftsbegriff, but no Korporationstheorie. It could co-ordinate 
Man and Community as equally real persons of different kinds ; 
but it had never turned round to ask itself what it was doing. 
And so down it went before the disciplined enemy: before the 
theory which Italian legists and decretists had been drilling. 

Then in another volume we have the history of this theory. 
We should misrepresent our author if, without qualification, we 
spoke of Italian science as the enemy. All technical merits 
were on its side ; it was a model for consequent thinking. Still, 
if it did good, it did harm. Its sacred texts were the law of an 
unassociative people. Roman jurisprudence, starting with a strict 
severance oiius publicum from ius privatum, had found its highest 
development in ' an absolutistic public law and an individualistic 
private law.' Titius and the State, these the Roman lawyers 
understood, and out of them and a little fiction the legal universe 
could be constructed. The theory of corporations which derives 
from this source may run (and this is perhaps its straightest 
course) into princely absolutism, or it may take a turn towards 
mere collectivism (which in this context is another name for in- 
dividualism); but for the thought of the hving group it can find 
no place; it is condemned to be 'atomistic' and 'mechanical' 
For the modern German ' Fellowship Theory ' remained the task 
of recovering and revivifying 'the organic idea' and giving to it 
a scientific form. 

It is not easy for an Englishman to throw his heart or even 
his mind into such matters as these, and therefore it may not 
be easy for some readers of this book at once to catch the point of 



Translator's Introduction. 



all Dr Gierke's remarks about the personality of States and Cor- 
porations. If we asked why this is so, the answer would be a long 
story which has never yet been duly told. However, its main 
theme can be indicated by one short phrase which is at this 
moment a focus of American politics: namely, 'Corporations and 
Trusts.' That puts the tale into three words. For the last 
four centuries Englishmen have been able to say, ' Allow us our 
Trusts, and the law and theory of corporations may indeed be 
important, but it will not prevent us from forming and maintaining 
permanent groups of the most various kinds : groups that, behind 
a screen of trustees, will live happily enough, even from century 
to century, glorying in their unincorporatedness. If Pope Innocent 
and Roman forces guard the front stairs, we shall walk up the 
back.' From the age when, among countless other unchartered 
fellowships, the Inns of Court were taking shape, to the age, when 
monopolizing trusts set America ablaze, our law of corporations 
has only been a part of our Genossenschaftsrecht, and not perhaps 
the most important part'. We will mention but one example. 
If we speak the speech of daily life, we shall say that in this 
country for some time past a large amount of wealth has 'be- 
longed' to religious 'bodies' other than the established church, 
and we should have thought our religious liberty shamefully im- 
perfect had our law prevented this arrangement. But until very 
lately our 'corporation concept' has not stood at the disposal of 
Nonconformity, and even now little use is made of it in this 
quarter: for our 'trust concept' has been so serviceable. Behind 
the screen of trustees and concealed from the direct scrutiny of 
legal theories, all manner of groups can flourish : Lincoln's Inn 
or Lloyd's' or the Stock Exchange or the Jockey Club, a whole 
presbyterian system, or even the Church of Rome with the Pope 
at its head. But, if we are to visit a land where Roman law has 

' See the Stat, of {1531 — 2) 23 Hen. VIII., 1. 10 ; lands are already being held to the 
use of unincorporated 'guilds, fraternities, comminalities, companies or brotherheads,' 
and this on so large a scale that King Henry, as supreme landlord, must interfere. 
Happily the lawyers of a later time antedated by a few years King Henry's dislike 
of ' superstition,' and therefore could give to this repressive statute a scope far narrower 
than that which its royal author assuredly intended. The important case is Porter's 
Case, I Coke's Reports, 22 b. 

» At length incorporated in 187 1: see F. Martin, History of Lloyd's, pp. 356—7, a 
highly interesting book. 



Political Theories of the Middle Age. 



been 'received,' we must leave this great loose 'trust concept' at 
the Custom House, and must not for a moment suppose that a 
meagre fideicommissum will serve in its stead. Then we shall 
understand how vitally important to a nation— socially, politically, 
religiously important— its Theory of Corporations might be. 

If it be our task legally to construct and maintain comfortable 
homes wherein organic groups can live and enjoy whatever ' liberty 
of association' the Prince will concede to them, a little, but only 
a little, can be done by means of the Romanist's co-ownership 
{condominium, Miteigentum) and the Romanist's partnership 
\societas, Gesellschaft). They are, so we are taught, intensely 
individualistic categories: even more individualistic than are the 
parallel categories of English law, for there is no 'jointness' 
{Gesammthandtschaff) in them. If then our Prince keeps the 
universitas, the corporate form, safe under lock and key, our task 
is that of building without mortar. But to keep the universitas 
safe under lock and key was just what the received theory enabled 
the Prince to do. His right to suppress collegia illicita was supple- 
mented by the metaphysical doctrine that, from the very nature of 
the case, 'artificial personality' must needs be the creature of 
sovereign power. At this point a decisive word weis said by 
Innocent IV. One outspoken legist reckoned as the fifty-ninth 
of the sixty-seven prerogatives of the Emperor that he, and only 
he, makes fictions : ' Solus princeps fingit quod in rei veritate non 
est'.' Thus 'the Fiction Theory' leads us into what is known 
to our neighbours as 'the Concession Theory.' The corporation 
is, and must be, the creature of the State. Into its nostrils the 
State must breathe the breath of a fictitious life, for otherwise it 
would be no animated body but individualistic dust 

Long ago English lawyers received the Concession Theory 
from the canonists. Bred in the free fellowship of unchartered 
Inns, they were the very men to swallow it whole. Blackstone 
could even boast that the law of England went beyond ' the civil 
law' in its strict adhesion to this theory"; and he was right, for 
the civilians of his day generally admitted that, though in principle 
the State's consent to the erection of a corporation was absolutely 
necessary, still there were Roman texts which might be deemed 

1 Lucas de Penna, cited by Gierke, Genossenschaftsrecht, m. 371. 
' Comment. I. 472. 



Translator s Introdtiction. xxxi 

to have given that consent in advance and in general terms for 
the benefit of corporations of certain innocuous kinds. But then, 
what for the civilians was a question of life and death was often 
in England a question of mere convenience and expense, so wide 
was that blessed back stair. The trust deed might be long ; the 
lawyer's bill might be longer ; new trustees would be wanted from 
time to time; and now and again an awkward obstacle would 
require ingenious evasion ; but the organized group could live and 
prosper, and be all the more autonomous because it fell under 
no solemn legal rubric. Lawyers could even say that the common 
law reckoned it a crime for men ' to presume to act as a corpora- 
tion'; but as those lawyers were members of the Inns of Court, 
we should hardly need other proof — there is plenty to be had — 
that the commission of this crime (if crime it were) was both very 
difficult and wholly needless'. Finally it became apparent that, 
unless statute law stood in the way, even a large company trading 
with a joint-stock, with vendible shares and a handsome measure 
of 'limited liability' could be constructed by means of a trust 
deed without any incorporation". 

Nowhere has the Concession Theory been proclaimed more 
loudly, more frequently, more absolutely, than in America ; no- 
where has more lip-service been done to the Fieschi. Ignorant 
men on board the 'Mayflower' may have thought that, in the 
presence of God and of one another, they could covenant and 
combine themselves together into 'a civil body politic'.' Their 
descendants know better. A classical definition has taught that 
' a Corporation is a Franchise,' and a franchise is a portion of 
the State's power in the hands of a subject*. A Sovereign People 

* Lindley, Company Law, Bk. I., ch. 5, sect. 1. In the curious case of Lloyd v. 
Loaring, 6 Ves. 773, Lord Eldon had before him a lodge of Freemasons which had 
made an imprudent display of what a Realist would call its corporate character. His 
lordship's indignation was checked by the thought that ' Mr Worseley's silver cup ' 
belonged to 'the Middle Temple.' 

' The directors are bound to give notice to every one who gives credit that he has 
nothing' to look to beyond the subscribed fimd, and that no person will be personally 
liable to hiin. As to these 'attempts to limit liability,' see Lindley, Company Law, 
Bk. II., ch. 6, sec. i. 

' The Mayflower Compact can be found, among other places, in Macdonald, Select 
Charters, p. 33. 

' Kent, Comment. Lect. 33 : 'A corporation is a franchise possessed by one or more 
individuals, who subsist as a body politic under a special denomination, and are vested, 



xxxu 



Political Theories of the Middle Age. 



has loved to deck itself in the purple of the Byzantine Basileus 
and the triple crown of the Roman Pontiff. But the picture has 
another side. Those 'Trusts' that convulsed America were 
assuredly organized bodies which acted as units, and if ever a 
Gesammtwille was displayed in this world, assuredly they dis- 
played it : but some of them were not corporations'. A reader 
of American trust deeds may well find himself asking what, 
beyond a few highly technical advantages, an incorporating 
act could bestow. No doubt, if the State mutters some mystical 
words there takes place in the insensible substance of the group, 
some change of which lawyers must say all that a Roman or 
Romanesque orthodoxy exacts; but to the lay eyes of debtors 
and creditors, brokers and jobbers, all sensible accidents seem 
much what they were. Already in 1694 in the stock and share 
lists that John Houghton was publishing the current prices of 
' actions ' in unincorporated bodies were placed alongside the prices 
of the stocks of chartered corporations^ Certainly it will be 
curious, but it will not be inexplicable, if when the Concession 
Theory has perished in other lands it still lurks and lingers in 
England or among men of English race. Probably our foreign 
critics would not suffer us to say that it does us no harm ; but 
they would confess that the harm which it does is neither very 
grave nor very obvious. A certain half-heartedness in our treat- 
ment of unincorporate groups, whose personality we will not 
frankly recognize while we make fairly adequate provision for 
their continuous life, is the offence against jurisprudence with 
which we might most fairly be charged, and it is an offence which 
tends to disappear now that groups of many kinds, cricket clubs, 
religious societies, scientific societies, and so forth, are slowly taking 
advantage of that offer of legal corporateness which has been open 
to them for nearly forty years' and are discovering that it is well to 
be regarded as persons. 

We can therefore imagine a German Realist bringing to bear 

by the policy of the law, with the capacity of perpetual suocession, and of acting in 
several respects, however numerous the association may be, as a single individual.' 

^ Of late — so we understand on this side of the sea — some of the largest combinations 
of capitalists have taken corporate form under the laws of New Jersey. 

' Houghton, A Collection for the Improvement of Trade. See especially No. 98 ff. 
where the author gives an account of joint-stock enterprise. 

* Companies Act, 1862, sec. 6. 



Translator s Introduction. xxxiii 

upon English law some such criticism as the following : — ' There 
is much in your history that we can envy, much in your free and 
easy formation of groups that we can admire. That great ' trust 
concept' of yours stood you in good stead when the days were 
evil : when your Hobbes, for example, was instituting an un- 
savoury comparison between corporations and ascarides^, when 
your Archbishop Laud (an absolutist if ever there was one) brought 
Corporation Theory to smash a Puritan Trust", and two years 
afterwards his friend Bishop Montague was bold enough to call 
the king's attention to the shamelessly unincorporate character of 
Lincoln's Inn'. And your thoroughly un-Roman ' trust concept ' 
is interesting to us. We have seen the like of it in very ancient 
Lombard charters*; and, by the way, it was Georg Beseler who 
suggested to the present Chief Justice of Massachusetts the quarter 
in which the origin of your trusts might be found". Also the 
connexion between trust and group takes back our thoughts all 
the way to the Lex Salica where the trustis is a group of comrades. 
Then, again, we can well understand that English lawyers were 
concerned to deny, at least in words, the personality of what you 
call an ' unincorporate body ' — a term which seems to us to make 
for truth, but also for self-contradiction. An open breach with 
Innocentian orthodoxy and cosmopolitan enlightenment seemed 
impossible, and so you maintained that the unincorporate body 
could, as we should say, be 'construed' as a mere sum of in- 
dividuals bound only by co-ownership and agreement. But you 
must excuse us for doubting whether you have pressed this theory 
to its logical conclusion. For example, we feel bound to ask 
whether, when a man is elected to one of your clubs (and you 
have been great makers of clubs), the existing members execute 
an assignment to him of a share in the club-house and its furniture, 



* Leviathan, II. 29 (Works, ed. Molesworth, vol. in., p. 321); 'like worms in 
the entrails of a natural man.' 

' For this case of the Feoffees of Impropriations, see Gardiner, Hist, of England, ann. 
1633, vol. VII., 258. 

* Black Book of Lincoln's Inn, vol. II., p. 333, ann. 1635. 

* Schultze, Die Lombardische Treuhand, Breslau, 1895. 

" O. W. Holmes, Law Quart. Rev. I. 163 : ' The feoffee to uses of the early English 
law corresponds point by point to the Salman of the early German law as described 
by Beseler fifty years ago.' 

M. C 



Political Theories of the Middle Age. 



and whether, when he resigns, he executes a release to the con- 
tinuing members. If that be not so, and we fancy that it is not, 
election to, and resignation of, membership in ' unincorporate 
bodies' should appear somewhat prominently in your books 
among the modes in which rights are acquired and lost, and then 
it would be plain enough that, beside a Korporationstheorie of 
Italian origin, you have a Kdrperschaftsbegriff of your own : an 
idea of a ' bodiliness ' which is not the effect of the State's fiat. 
Then why, we should like to know, did your legislature lately 
impose a tax on the property of ' unincorporate bodies ' as well 
as on that of corporate bodies .? When the property of individuals 
and of corporations was already taxed, was there still property 
that escaped taxation'? And what can your legislature mean 
when it says that in Acts of Parliament (unless a contrary in- 
tention appears) the word ' person ' is to include ' any body of 
persons corporate or unincorporate'"? If once we are allowed 
to see personality wherever we see bodiliness, the victory of 
Realism is secure, though an old superstition may die very hard. 
Some day the historian may have to tell you that the really 
fictitious fiction of English law was, not that its corporation was 
a person, but that its unincorporate body was no person, or (as 
you so suggestively say) was nobody. There are many other 
questions that we should like to ask of you. Why, for instance, 
are free-born and commercially-minded Englishmen prohibited by 
statute from trading in large partnerships'? Is it not because your 
good sense and experience have taught you that, do what you will 
and say what you will, the large trading group will assuredly 
display, as it does in America, the phenomena of corporateness 
and therefore ought to stand under the law for corporations ? And 
do you not think that some part at least of the appalling mess — 
forgive us — the appalling mess that you made of your local 
government was due to a bad and foreign theory which, coupling 
corporateness with princely 'privilege,' refused to recognize and 
foster into vigour the bodiliness that was immanent in every 

' Customs and Inland Revenue Act, 1885, sec. 11 : 'Whereas certain property, by 
reason of the same belonging to or being vested in bodies corporate or unincorporate, 
escapes liability to probate, legacy, or succession duty.' 

' Interpretation Act, 1889, sec. 19. 

' Companies Act, 1862, sec. 4. 



Translator's Introduction. xxxv 

English township, in every rural Gemeindet Even our theory- 
ridden Romanists were not guilty of that fatal blunder which you 
are now endeavouring tardily to repair by the invention of Parish 
Councils and from which some of your less pedantic kinsmen in 
the colonies kept themselves free when they suffered 'the New 
England town' to develop its inherent corporatenessV 

To say these few words of our own law has seemed advisable 
in order that foreign controversies over the nature and origin of 
a corporation's or a State's personality may be the better under- 
stood. We may spend one moment more in observing that the 
English Trust, nurtured though it was within the priviest recesses 
of Private Law, and educated, if we may so say, in a private 
school, has played a famous part on the public, the world-wide, 
and world-historic stage. When by one title and another a ruler- 
ship over millions of men in the Indies had come to the hands 
of an English Fellowship, this corporation aggregate was (some- 
what unwillingly) compelled by Acts of Parliament to hold this 
precious thing, this ' object of rights,' this rulership, upon trust 
for a so-called corporation sole, namely, the British Crown". If 
at the present time our courts and lawgivers find it needless openly 
to declare that the colonies are, to use the old phrase, 'bodies 
corporate and politic in deed, fact and name,' this is because our 
hard-worked Crown is supposed to hold some property for or ' in 
right of the Dominion of Canada and other property for or ' in 
right of the Province of Ontario, and a court, after hearing the 
attorneys-general for these beneficiaries, these communities or 
commonwealths, will decide how much is held for one, and how 
much for another. Certainly we work our Trust hard and our 
Crown harder, and it seems possible that some new thoughts or 
some renovation of old thoughts about the personality of the 
organized group might shew us straighter ways to desirable and 
even necessary ends. 

In the days when Queen Elizabeth was our ' Prince,' she did 



^ A case of 1497 (Year Book, Trin. 12 Hen. VII., f. 27, pi. 7) marks the beginning 
of an unhappy story. See Toulmin Smith, The Parish, ed. 2, p. 269. 

2 The theory finds explicit statement in the Act of 1833 (3 & 4 Will. IV., c. 85), 
preamble : ' And whereas it is expedient that the said territories now under the govern- 
ment of the said Company be continued under such government, but in trust for the 
Crown of the United Kingdom.' 



Political Theories of the Middle Age. 



not forbid her secretary to write in Latin de Republica Anglorum, 
or in English of the Commonwealth of England: Prince and Re- 
public were not yet incompatibles. Events that happened in the 
next century outlawed some words that once were good and lawful, 
and forced us to make the most that we could of the ' Subject ' 
(or subjectified Object) that lies in the Jewel House at the Tower. 
Much we could make of it, but not quite all that was needful. 
Not having always been a punctual payer, the Crown was not 
always a good borrower, and so our Statute Book taught us to 
say that the National Debt was owed, not by the Crown, but by 
'the Publick'; and this Public looks much like a Respublica which, 
to spare the feelings of ' a certain great personage,' has dropped its 
first syllabled Those who rely upon 'the faith of the Public' 
receive their annuities in due season, even if we have no neat 
theory about the relationship between that "passive subject,' the 
Public, which owes them money, and that ' active subject,' the 
Crown, to which they pay their taxes. Possibly the Crown and 
the Public are reciprocally trustees for each other ; possibly there 
is not much difference now-a-days between the Public, the State, 
and the Crown", for we have not appraised the full work of the 
Trust until we are quitting the province of jurisprudence to enter 
that of political or constitutional theory. 

In the course of the eighteenth century it became a parlia- 
mentary commonplace that 'all political power is a trust'; and 
this is now so common a commonplace that we seldom think over 
it. But it was useful*. Applied to the kingly power it gently 

^ Already in 1697 (8 & 9 Will. III., u. 20, sec. 20) provision is made for 'the 
better restoring of the credit of the Nation.' There follow a good many financial 
transactions between ' the Publick ' and the East India Company. For example in 1786 
'the Publick stands indebted' to the Company in a sum of four millions and upwards. 
Stat. 26 Geo. III., c. 62. 

" Pensions (Colonial Service) Act, 1887, sec. 8: 'The expressions 'permanent civil 
service of the State,' 'permanent civil service of Her Majesty,' and 'permanent civil 
service of the Crown ' are hereby declared to have the same meaning.' 

' At the time when these words were being written one of Her Majesty's Principal 
Secretaries of State was ' operating ' on a magnificent scale with our ' trust concept.' 
Her Majesty's Government, he was repeatedly saying, is (or are) a trustee (or trustees) 
for 'the whole Empire.' Already in Locke's Essay on Civil Government (e.g. sees. 142, 
149) a good deal is said of trust and breach of trust. As the beneficiary (cestui que trust) 
who seeks the enforcement of a trust is not necessarily or even normally the trustor 
or creator of the trust, the introduction of talk about trusts into such work as Locke's 
serves to conceal some of the weak points in the contractual theory of Government. 



Translator s Introduction. 



relaxed that royal chord in our polity which had been racked 
to the snapping point by Divine right and State religion. Much 
easier and much more English was it to make the king a trustee 
for his people than to call him officer, official, functionary, or even 
first magistrate. The suggestion of a duty, enforceable indeed, 
but rather as a matter of ' good conscience ' than as a matter of 
* strict law ' was still possible ; the supposition that God was the 
author of the trust was not excluded, and the idea of trust was 
extremely elastic. For of trusts we know many, ranging from 
those which confer the widest discretionary powers to those which 
are the nudest of nude rights and the driest of legal estates. 
Much has happened within and behind that thought of the king's 
trusteeship: even a civil death of 'personal government,' an 
euthanasia of monarchy. And now in the year 1900 the banished 
Commonwealth, purged of regicidal guilt, comes back to us from 
Australia and is inlawed by Act of Parliament. Wonderful 
conjuring tricks with a crown or a basket {fiscus) may yet be 
played by deft lawyers, especially by such as are familiar with 
trusts for ' unincorporate bodies'; but we may doubt whether 
they will much longer be able to suppress from legal records the 
thought that was in Bracton's mind when he spoke of the uni- 
versitas regni^. ' The crown,' said Coke, ' is an hieroglyphic of 
the laws".' Such hieroglyphics, personified dignities, abstract 
rulerships, subjectified crowns and baskets are (so the realistic 
historian would tell us) the natural outcome of a theory which 
allows a real personality and a real will only to Jameses and 
Charleses and other specimens of the zoological genus komo and 
yet is compelled to find some expression, however clumsy, for 
the continuous life of the State. Names, he might add, we will 
not quarrel over. Call it Crown, if you please, in your Statute 
Book, and Empire in your newspapers ; only do not think, or 
even pretend to think, of this mighty being as hieroglyphic or as 
persona ficta or as collective name. 

In Germany (for we must return) the Concession Theory has 
fallen from its high estate; the Romanists are deserting it»; it 
is yielding before the influence of laws similar to, though less 

1 Bracton, f. 171 b. ' Calvin's Case, 7 Rep. 11 b. 

» Windscheid, Pandekten, § 60; Demburg, Pandekten, § 63; Regelsberger, Pan- 
dekten, § 78. See also Mestre, Les Personnes Morales, 197 ff. 



Political Theories of the Middle Age. 



splendidly courageous than, our Act of 1862, that 'Magna Carta 
of co-operative enterprise^' which placed corporate form and legal 
personality within easy reach of "any seven or more persons 
associated for any lawful purpose.' It has become difficult to 
maintain that the State makes corporations in any other sense 
than that in which the State makes marriages when it declares 
that people who want to marry can do so by going, and cannot 
do so without going, to church or registry. The age of corporations 
created by way of ' privilege ' is passing away. The constitutions 
of some American States prohibit the legislatures from calling 
corporations into being except by means of general laws^ and 
among ourselves the name ' Chartered ' has now-a-days a highly 
specific sense. What is more, many foreign lawyers are coming to 
the conclusion that in these days of free association, if a group 
behaves as a corporation, the courts are well-nigh compelled to 
treat it as such, at least in retrospect. It has purposely, let us 
say, or negligently omitted the act of registration by which it 
would have obtained an unquestionable legal personality. Mean- 
while it has been doing business in the guise of a corporation, 
and others have done business with it under the belief that it 
was what it seemed to be. It is strongly urged that in such cases 
injustice will be done unless corporateness is treated as matter of 
fact, and American courts have made large strides in this direction*. 
It seems seriously questionable whether a permanently organized 
group, for example a trade union, which has property held for it by 
trustees, should be suffered to escape liability for what would 
generally be called ' its ' unlawful acts and commands by the 
technical plea that ' it ' has no existence ' in the eye of the law^' 
Spectacles are to be had in Germany which, so it is said, enable 
the law to see personality wherever there is bodiliness, and a time 
seems at hand when the idea of ' particular creation ' will be as 
antiquated in Corporation Law as it is in Zoology. Whether we 
like it or no, the Concession Theory has notice to quit, and may 
carry the whole Fiction Theory with it. 

' Palmer, Company Law, p. i. 

' Morawetz, Private Corporations, § 9 ff.; Dillon, Municipal Corporations, § 45. 

^ For the treatment of these 'de facto corporations' see Taylor, Private Corporations, 
§ 146 ff. ; Morawetz, § 735 ff. 

* This was written some months before Mr Justice Farwell issued an injunction against 
a Trade Union (Times, 6 Sept. 1900). Of this matter we are likely to hear more. 



Translator's Introduction. 



XXXIX 



The delicts, or torts and crimes, of corporations have naturally- 
been one burning point of the prolonged debate. To serious minds 
there is something repulsive in the attribution of fraud or the 
like to the mindless persona ficta. The law would set a bad 
example if its fictions were fraudulent. But despite some fairly- 
clear words in the Digest, and despite the high authority- of the 
great Innocentius, the practice of holding communities liable for 
delict was, so Dr Gierke says, far too deeply rooted in the Ger- 
manic world to be eradicated. Even Savigny could not per- 
manently prevail when the day of railway collisions had come. 
And so in England we may see the speculative doubt obtruding 
itself from time to time, but only to be smothered under the 
weight of accumulating precedents, while out in America the old 
sword of Quo warranto, forged for the recovery of royal rights 
from feudal barons, is descending upon the heads of joint-stock 
companies with monopolizing tendencies. When an American 
judge wields that sword and dissolves a corporation, he is 
performing no such act of discretionary administration as 
Savigny would have permitted ; he uses the language of penal 
justice ; he may even say that he passes sentence of death, and 
will expend moral indignation on the culprit that stands before 
him'. 

It is worthy of remark, however, that in this region Englishmen 
have been able to slur a question which elsewhere assumes great 
importance : namely, whether a corporation 'itself can do unlawful, 
or indeed any acts. We have been helped over a difficulty by 
the extremely wide rule of employers' liability which prevails 
among us and towards which some of our neighbours have cast 
wistful eyes. A servant of Styles acting within the scope of 
his employment does a wrong ; we hold Styles liable. We sub- 
stitute a corporation for Styles, and then this corporation is liable. 
This being so, we can say that ' of course' the corporation would 
be liable if the wrongful act were done or commanded by its 
directorate or by its members in general meeting. It matters 
little whether we affirm or deny that in this case the act would 
be that of the corporation ' itself,' for if it were not this, it could 
still be represented as the act of an agent or servant done within 

' For example see the solemn words of Finch, J. in People v. North River Sugar 
Refining Co., 1890 ; Jer. Smith, Select Cases on Private Corporations, II. 944. 



xi Political Theories of the Middle Age. 



the scope of his employment. Whether that picture of the 
assembled members or directors as agents or servants of an Un- 
knowable Somewhat, which cannot have appointed or selected 
them, is a life-like picture we need hardly ask: the conclusion is 
foregone. Such is our happy state. But where Roman law has 
been received the primary rule is that a master has not to answer 
for acts that he has not commanded, at all events if he has shewn 
no negligence in his choice of a servant. If then the directorate 
of a company has done wrong, for example has published a libel, 
much may depend on the manner in which the case is envisaged. 
If we say that the corporation itself has acted by its organs, as 
a man acts by brain and hand, then the corporation is liable ; but 
the result may be very different if we reduce the directors to the 
level of servants or agents. Those therefore who have been 
striving for the 'organic idea' have not been fighting for a mere 
phrase ; and now the term ' Organ ' stands in the Civil Code of 
Germany. That is no small triumph of Realism ^ 

That the theory of the Group Person and the Group Will has a 
long struggle before it if it is ever to dominate the jurisprudence of 
the world would be admitted even by its champions. We have 
just been touching the confines of a region in which lies the 
stronghold of an opposing force. That ancient saying — its sub- 
stance is as old as Johannes Andreae — which bids the body politic 
fear no pains in another world represents profound beliefs. Not- 
withstanding all that we may say of 'national sins' and 'the 
national conscience' and the like, a tacit inference is drawn from 
immunity (real or supposed) to impeccability, and, until they are 
convinced that corporations and States can sin, many people will 
refuse to admit that a corporation or State is a thoroughly real 
person with a real will. We cannot wait for eschatology to say its 
last word, but even in quarters where jurisprudence is more at its 
ease there are many contestable points of which we must not 
speak. However, the general character of the debate is worthy of 
observation. The Realist's cause would be described by those who 
are forwarding it as an endeavour to give scientific precision and 
legal operation to thoughts which are in all modern minds and 
which are always displaying themselves especially in the political 

' Biirgerliches Gesetzbuch, § 32. The term has for some time past been used 
in German laws and by German courts. Gierke, Genossenschaftstheorie, p. 614. 



Translator' s Introduction. xii 

field. We might be told to read the leading article in to-day's 
paper and observe the ideas with which the writer ' operates ' : the 
will of the nation, the mind of the legislature, the settled policy of 
one State, the ambitious designs of another : the praise and blame 
that are awarded to group-units of all sorts and kinds. We might 
be asked to count the lines that our journalist can write without 
talking of organization. We might be asked to look at our age's 
criticism of the political theories and political projects of its 
immediate predecessor and to weigh those charges of abstract in- 
dividualism, atomism and macadamization that are currently made. 
We might be asked whether the British Empire has not yet 
revolted against a Sovereign that was merely Many (a Sovereign 
Number as Austin said) and in no sense really One, and whether 
'the People' that sues and prosecutes in American courts is a 
collective name for some living men and a name whose meaning 
changes at every minute. We might be referred to modern 
philosophers : to the social tissue of one and the general will, 
which is the real will, of another. Then perhaps we might fairly 
be charged with entertaining a deep suspicion that all this is 
metaphor : apt perhaps and useful, but essentially like the personi- 
fication of the ocean and the ship, the storm and the stormy petrel. 
But we, the Realist would say, mean business with our Group 
Person, and severe legal logic. We take him into the law courts 
and markets and say that he stands the wear and tear of forensic 
and commercial life. If we see him as the State in an exalted 
sphere where his form might be mistaken for a cloud of rhetoric or 
mysticism, we see him also in humble quarters, and there we can 
apprehend and examine and even vivisect him. For example, we 
are obliged to ask precise questions concerning the inferior limit of 
group-life. Where does it disappear ? That is no easy question, 
for the German Partnership goes near to disengaging a group-will 
from the several wills of the several partners ; but on the whole we 
hold, and can give detailed reasons for holding, that in this quarter 
the line falls between our partnership and our joint-stock company. 
By those who have neither leisure nor inclination to understand 
competing theories of German partnerships, German companies 
and German communes, it may none the less be allowed that 
theories of the State and theories of the Corporation must be 
closely connected. The individualism which dissolves the com- 



xiii Political Theories of the Middle Age. 



pany into its component shareholders is not likely to stop at that 
exploit, and the State's possession of a real will is insecure if no 
other groups may have wills of their own. Hence the value of a 
theory which at all events endeavours to cover the whole ground. 
To say more would be to say much more ; and enough, it is hoped, 
has been said to enable a reader of the following pages to under- 
stand the place that they hold in an historical and doctrinal 
exposition of ' German Fellowship Right' We have, it must be 
supposed, made a brief survey of the history from first to last of 
German groups ; then we have turned back to explore the thoughts 
that were implicit in the Group Law of medieval Germany ; then, 
having reached the eve of the Reception, we have investigated the 
genesis and adventures of that learned theory of Corporations 
which is about to cross the Alps ; we have been among Greek 
philosophers, Roman lawyers, Christian fathers, and have spent a 
long time in Italy with the canonists and legists. We are now on 
the point of returning to the Germany of the sixteenth century to 
watch the Reception of this theory and the good and ill that 
follow, when Dr Gierke interpolates the following brief, but surely 
valuable, account of the political (or rather ' publicistic ') theories 
of the Middle Age : theories which, as he remarks, have numerous 
points of contact with the main theme of his book. 

The reader need not fear that he will here encounter much that 
he could call technical jurisprudence. Indeed so much as has been 
said in this Introduction touching Corporation Law and German 
Fellowships has been intended to explain rather the context than 
the text of an excerpted chapter. It will be seen, however, that 
while Dr Gierke is careful of those matters to which any historian 
of political theory would attend — for instance, the growth of 
definitely monarchical and definitely democratic doctrines — an 
acute accent, which some English readers might not have an- 
ticipated, falls upon the manner in which States, rulers and peoples 
were conceived or pictured when theorists made them the 'subjects' 
of powers, rights and duties. The failure of medieval theorists to 
grasp the personality of the State appears as a central defect 
whence in later times evil consequences are likely to issue. It will 
be seen that the stream of political theory when it debouches from 
the defile of the Middle Age into the sun-lit plain is flowing in a 
direction which, albeit destined and explicable, is not regarded by 



Translator' s Introduction. xUii 



our author as ultimate. However much the river may be gaining 
in strength and depth and lucidity as it sweeps onwards towards 
the Leviathan and the Contrat Social, its fated course runs for 
some centuries away from organization and towards mechanical 
construction, away from biology and towards dynamics, away from 
corporateness and towards contractual obligation, away (it may be 
added) from Germanic lands and towards the Eternal City. It 
will be gathered also that the set of thoughts about Law and 
Sovereignty into which Englishmen were lectured by John Austin 
appears to Dr Gierke as a past stage. For him Sovereignty is an 
attribute, not of some part of the State, but of the Gesammtperson, 
the whole organized community. For him it is as impossible to 
make the State logically prior to Law {Recht) as to make Law 
logically prior to the State, since each exists in, for and by the 
other. Of these doctrines nothing must here be said, only let us 
remember that if the Rechtsstaatsidee, much discussed in Germany, 
seems to us unfamiliar and obscure, that may be because we have 
no practical experience of a Polizeistaat or Beamtenstaat. Some 
friendly critics would say that in the past we could afford to accept 
speciously logical but brittle theories because we knew that they 
would never be subjected to serious strains. Some would warn us 
that in the future the less wp say about a supralegal, suprajural 
plenitude of power concentrated in a single point at Westminster — 
concentrated in one single organ of an increasingly complex 
commonwealth — the better for that commonwealth may be the 
days that are coming. 

III. 

The task of translating into English the work of a German 
lawyer can never be perfectly straightforward. To take the most 
obvious instance, his Recht is never quite our Right or quite our 
Law. I have tried to avoid terms which are not current in 
England. For this reason I have often written political when I 
would gladly have written publicistic. On the other hand I could 
not represent our author's theory without using the term Subject in 
the manner in which it is used by German jurists and publicists'. 
For nature-rightly an apology may be due, but there was a pressing 

^ See above p. xx., note r. 



xiiv Political Theories of the Middle Age. 



need for some such adjective. A doctrine may be naturrechtlich, 
though it is not a doctrine of Natural Law nor even a doctrine 
about Natural Law, and a long periphrasis would probably say 
more or less than Dr Gierke intendeds It will be seen that in his 
historical scheme a large part is played by the contrast between 
genuinely medieval thought and 'antique-modern' ideas. These 
are ideas which proceeding from Classical Antiquity are be- 
coming modern in their transit through the Middle Ages, but not 
without entering into combination with medieval elements. I 
could call them by no other name than that which Dr Gierke has 
given to them : they must be ' antique-modern.' I would not if I 
could induce the reader to forget that he has before him the work 
not only of a German jurist but of a leader among Germanists. 

Some of the treatises to which Dr Gierke refers in his notes 
have been re-edited since his book was published (i88i). The main 
event of this kind is, so I believe, the publication in the Monu- 
menta Germaniae of the numerous pamphlets which were evoked 
by the struggle over the Investitures and which set before us the 
papal and imperial theories of Public Law in the first stage of their 
formation". I have thought it best to repeat Dr Gierke's references 
as I found them and not to attempt the perilous task of substituting 
others. Among the new materials is the highly interesting and 
astonishingly anti-papal treatise of an anonymous canon of York, 
apparently of Norman birth, who about the year i lOO was warmly 
taking our king's side in the dispute about Investitures and was 
writing sentences that Marsiglio and Wyclif would not have dis- 
owned. But of him we may read in Bohmer's valuable and easily 
accessible history of Church and State in England and Normandy'. 
A few notes about some English publicists I might have been 
tempted to add, had I not made this translation in a land where 

' When, for example, Dr Brunner (v. Holtzendorfij Encyklopadie, ed. 5, p. 347) 
mentioned ' die naturrechtlichen Theorien Benthams und Austins iiber den radikalen 
Beruf des Gesetzgebers ' he was not accusing Bentham and Austin of believing in what 
they would have consented to call Natural Law. Austin's projected science of General 
Jurispradence which was to bring to light 'necessary' principles (p. 1108) would 
apparently have been very like a system of Naturrecht. 

^ Libellj de lite imperatorum et pontificum, 3 vols., 1891 — 1 — 7. See Fisher, The 
Medieval Empire, II. 57. 

' Bohmer, Kirche und Staat in England und in der Noimandie, Leipzig, 1899, 
p. 177 ff. 



Translator s Introduction. xiv 

books of any kind are very rare. Some references to Richard Fitz 
Ralph, to the Song of Lewes, to Sir John Fortescue and the 
English law-books might have been inserted. But the works of 
Mr Poolei, Mr Kingsford" and Mr Plummer' are likely to be in 
the hands of every English student of medieval politics; to John'of 
Salisbury and William of Ockham — who belong rather to the 
World-State than to England — Dr Gierke seems to have done 
ample justice ; I know of little, if anything, that would tend to 
impair the validity of his generalizations * ; and my endeavour has 
been to obtain for him the hearing to which he is justly entitled. 
I hope that I may induce some students of medieval and modern 
history, law and political theory to make themselves acquainted 
with his books'. 

^ A large part of the treatise of Fitz Ralph (Armachanus) is to be found in Mr R. L. 
Poole's edition of Joh. Wycliffe, De dominio divino, Wyclif Society, 1890. See also 
Mr Poole's Illustrations of the History of Medieval Thought, 1884. 

' Kingsford, The Song of Lewes, 1890. 

' Plummer, Fortescue's Governance of England, 1885. An English reader will 
hardly need to be told that Dr Creighton's History of the Papacy will introduce him to 
the practical aims and projects of some of the medieval publicists. Mr Jenks's Law 
and Politics in the Middle Ages (1898) will also deserve his attention. 

'' In England the idea of a World-State which is governed by the Emperor appears 
chiefly in the much modified form of a notion that somehow or another the king of 
England either is an Emperor or will do instead of an Emperor. Henry I. was 
Gloriosus Caesar Henricus : Leg. Hen. Prim. pref. Bracton, f. 5 bj Bracton and 
Azo (Seld. Soc), p. 57. Rishanger, Chron. et Ann. (Rolls Ser.), p. 255 : Speech of the 
bishop of Byblos : dominus Rex hie censetur imperator. Rot. Pari. in. 343 : Richard II. 
is 'entier Emperour de son Roialme.' On the other side stands that strange book the 
Mirror of Justices (Seld. Soc), pp. xxxiv., 195. 

" Dr Gierke's notes are foot-notes. I thought that I should consult the tastes of 
English readers by placing them at the end of the book. The marginal catch-words are 
mine, but the summary of the argument is Dr Gierke's. I owe my thanks for many 
valuable suggestions to Mr J. N. Figgis whose essays on the Divine Right of Kings 
(1896) and on Politics at the Council of Constance (Trans. Roy. Hist. Soc. N. S. xili. 
103) will be knovm to students. Last year, being sent from England, I was encouraged 
to undertake this translation by Professor Henry Sidgwick. What encouragement was 
like when it came from him his pupils are now sorrowfully remembering. 



ANALYTICAL SUMMARY. 



I. The Evolution of Political Theory. 

Development of a Political Theory (p. i). It becomes a Philosophy 
of State and Law (i). Cooperation of the various Sciences (i). Unity 
and generality of the doctrine beneath all controversies (2). Combination 
into a system of elements which came from various quarters (2). The 
various methods mutually complete each other (3). Theologico-philo- 
sophical Speculation, political pamphleteering, and professional Juris- 
prudence (3). The Medieval Theory of State and Society is a stream 
which flows in a single bed (3). Relation of Medieval to Antique-Modern 
Thought (3). The system of the Medieval Spirit (4). Reception of the 
antique ideas of State and Law (4). Genesis of the specifically modern 
ideas (4). Growth of an antique-modern kernel in the shell of the 
medieval system (4). Stages in the work of dissolution and reconstruc- 
tion (5). Relation of Political Theory to the Romano-Canonical Theory 
of Corporations (6). 

IL Macrocosm and Microcosm. 

The Political Thought of the Middle Age starts from the Whole but 
attributes intrinsic value to every partial whole down to the ihdividual (7). 
Hence its theocratic and spiritualistic traits (7). Idea of the divinely- 
willed Harmony of the Universe (7). The Universe as Macrocosm and 
every pairtial whole as Microcosm (8). The first principles of the Doctrine 
of Human Society must be borrowed from the idea of the divinely- 
organized Universe (8). 

III. Unity in Church and State. 

The Principle of Unity (9). It is the constitutive principle of the 
Universe (9). Therefore it must be valid in every Partial Whole (9). 
Unitv as the source and goal of Plurality (9). The Ordinatio ad unum 
an ali-pervading principle (9). AppUcation thereof to Human Society (9). 
Widei and narrower social units (10). 



xiviii Political Theories of the Middle Age. 

The postulate of an external unity of All Mankind (lo). Mankind 
as a mystical body, Ecdesia universalis, Respublica generis humani (lo). 
The divinely appointed severance of this body into two Orders of Life 
the Spiritual and the Temporal (lo). Each of these Orders a separate 
external realm (ii). This dualism cannot be final, but must find recon 
ciliationin some higher unity (ii). 

The clerical party sees the solution in the Sovereignty of the Spiritual 
Power (ii). The Principle of Unity is the philosophic foundation of the 
hierarchical theory which is developed from the time of Gregory VII. 
onward (ii). The Church is the true Cosmopolis (ii). The Pope is 
its earthly Head (12). The divinely appointed separation of the two 
Powers extends only to their use (12). The Temporal Power possesses 
a divine sanction and mandate only through the mediation of the Church 
(12). Unholy origin of the State (12). It needs hallowing by ecclesi- 
astical authority (13). « Institutio ' of the Realm by the Priesthood (13) 
The Temporal Order remains a subservient part of the Ecclesiastical Order 
and a means for ecclesiastical ends (13). Leges and Canones (13). Duty 
of obeying the Church (13). Worldly Rulership as ecclesiastical office (13). 
Papal claims to Overlordship above the Emperor and other independent 
wielders of worldly power (13). The Theory of the Two Swords (13) 
The Pope has utrumque gladium but demises the use of the Temporal 
Sword (14). Application of the feudal idea (14). The Temporal Sword 
to be wielded in the service and at the instance of the Church (14). The 
Pope's right of supervision by virtue of the Spiritual Sword (14). Right 
and duty of the Pope in certain cases to make a direct use of the Temporal 
Sword (14). Translatio imperii (14). Institution of Emperors and 
Kings (14). Guardianship of the Realm when it is vacant or the Ruler is 
neglectful (15). Jurisdiction over Emperors and Kings, Protection of 
Peoples against Tyranny, Deposition of Rulers and Liberation of Subjects 
(15). All these claims are the direct outcome of ius divinum (15). 
Positive Law cannot derogate from them (15). 

The champions of the State but very rarely deduce a Sovereignty of 
State over Church from the Principle of Unity (16). Reminiscences of 
an older condition of affairs (16). Ockham (16). Marsilius of Padua(i6). 
In general the doctrine of two co-ordinate Powers each with a divinely 
appomted sphere is maintained (16). Battle for the independence of 
lemporal Law (16). And for the maxim Imperium immediate a Deo (17). 
Particular claims of the Church Party resisted (17). Concession of an 
equal Sovereignty and Independence to the Spiritual Sword (17). Superior 
rank allowed to the Church (17). Twofold attempt to resolve the duality 
in a higher unity (17). Christ's invisible Headship a sufficient present- 



Analytical Summary. xUx 

ment of Unity (17). An internal Unity of the two Orders of Life 
resulting from their intimate connexion and mutual support (17). Re- 
ciprocal completion of the two Powers in the production of a single 
Life (17). Curious theory of a law of necessity permitting one of the two 
Powers to assume functions that are not its own (18), 

The Principle of Unity within Church and State respectively (18). In 
the Church (18). The Church as a single visible Polity (19). Reaction 
against the tendency to make a State of the Church (19). Unity in the 
Temporal Sphere (19). Necessity and divine origin of the World-State (19). 
The imperium mundt of the Romano-German Emperor (20). Controversy 
as to possible exemptions from the Empire (20). Universality of the 
Empire denied in principle (20). 

The visible Unity postulated in Church and State does not extend 
beyond those matters which lie within the purpose that is common to 
All Mankind (20). Organically Articulated Structure of Human Society 
(21). The units that mediate between the Community of Mankind and 
the Individual (21). Attempt to establish general schemes of these inter- 
mediate units: village, city, kingdom etc. (21). Appearance of a 
centralizing tendency in Church and State which is opposed to this federal- 
istic system (21). 



IV. TAe Idea of Organization. 

Comparison of Mankind and every smaller group to a body informed 
by a soul (22). Mankind as a Corpus Mysticum (22). Heads of this 
Body (22). Church and State as soul and body (22). Inferences drawn 
from this picture resisted (23). Nicholas of Cues on the Body of Mankind 
(23). The ecclesiastical or temporal group as a Corpus mysticum (24). 
The Corpus morale et politicum of Engelbert of Volkersdorf (24). 

The comparison descending to particulars (24). Anthropomorphic 
conceits of John of Salisbury (24). Of Aquinas and others in relation 
to the Church (25). Ptolemy of Lucca (25). Aegidius Colonna (25). 
Engelbert of Volkersdorf (26). Marsilius of Padua (26). Ockham (27). 
Later writers (27), Nicholas of Cues (27). 

Derivation of other ideas from the fundamental idea of the Social 
Organism (27). Idea of Membership (27). Differentiation and grouping 
of members (28). Idea of Mediate Articulation (28). Idea of Organiza- 
tion (28). Idea of Function (28). Idea of an Organ (28). Idea of the 
governing part as the Living Principle (28). Idea of the natural growth of 
social bodies is suppressed by the idea of Creation (29). 

M. ^ 



Political Theories of the Middle Age. 



As in Antiquity, so in the Middle Age, the idea of Organization fails to 
issue in the legal concept of the Personality of the unified Whole (29). 
Just for this reason it can conceal, but cannot hinder, the progress of 
the atomistic and mechanical mode of constructing the State (30). 

V. The Idea of Monarchy. 

God as Monarch of the Universe and therefore of the spiritual and 
temporal Community of Mankind (30). As an Institution, all Rulership 
proceeds from God (30). But from Him proceed also the office and 
mandate of every particular wielder of earthly power (31). All power 
immediately or mediately demised by God (31). Since every Partial 
Whole should be like the Universal Whole, a monarchical constitution of 
Church and State seems self-evident (31). The medieval Publicist's 
preference for Monarchy (31). Divine institution of Monarchy in the 
Church (32). Divine institution of Monarchy in the Empire (32). In 
every smaller body Monarchy is normal (32). Dissolution of these 
thoughts under the influence of Antiquity (32). Relative rightfulness of 
Republican Constitutions (32). Attacks on the divine origin of Monarchy 
in Church and State (33). Preference for Republics among the Humanists 
(33). Rejection of inferences favourable to Monarchy that are drawn 
from the Principle of Unity (33). 

The Doctrine of the Monarch's position (33). The genuinely 
Medieval Doctrine, in which the Germanic idea of Lordship lives on but 
is deepened by Christianity, sees in every Lordship an Office proceeding 
from God (33). Exaltation of the Ruler's person (33). But energetic 
development of the official character of Rulership (34). Reciprocal Rights 
and Duties of Ruler and Community (34). All duty of obedience con- 
ditioned by the rightfulness of the command (35). The Doctrine of 
Active Resistance (35). Development of the idea of the Ruler's 
Sovereignty beside that of the Ruler's Office (35). Tht plenitudo potestatis 
of the Pope (36). Struggle between this notion and that of poiestas 
limiiaia (36). The plenitude potestatis of the Emperor (36). Opposition 
(36). Starting points of a doctrine limiting monarchical rights (37). 

VI. The Idea of Popular Sovereignty. 

The medieval notion of the active and aboriginal Rights of the 
Community (37). Conflict over the quality and scope of these Rights (37). 
Original influence of the Germanic idea of Fellowship (37). Transmuta- 
tion under the influence of antique elements (37). Issue in the direction 



Analytical Summary. 



of Popular Sovereignty (38). Combinations of People's Sovereignty with 
Ruler's Sovereignty (38). 

1. In the Temporal Sphere : Rights of the Community (38). The 
People's Will the source of Lordship (38). Doctrine of the State of 
Nature (38). Appeal to the Corpus luris Civilis to prove that the highest 
earthly power proceeds from the Will of the People (39). Legal origin 
of all subjection in the voluntary and contractual submission of the Com- 
munity (39). Escheat of the Imperium to the People (40). Claims of 
the Roman townsfolk (41). Rejection of those claims by Leopold of 
Bebenburg (41). Cooperation of the People in the transfer of the Empire 
from the Greeks to the Germans (41). Guardianship of the vacant Empire 
(42). Right of the People to choose its Head (42). The pure Elective 
Principle preferable to the institution of Hereditary Dignities (42). Legal 
foundation and legal nature of the electoral rights of the Prince 
Electors (42). 

Rights of the Community as against a legitimately instituted Ruler (43). 
Controversy among the Glossators as to the significance of the translatio 
imperii by the populus to the princeps (43). Theory of an out-and-out 
conveyance (43). Theory of a mere concessio (43). Extension of this 
controversy to the general case of Prince and People (43). 

The champions of Ruler's Sovereignty (43). Derivation of Absolute 
Monarchy from an Abdication of the Community (43). But even on this 
side a continuing right of the People as against the Ruler is conceded (44). 
Contractual relationship between Ruler and People (44). A right of 
active participation in the life of the State conceded to the People (44). 
Acts prejudicial to the Community's Rights require the consent of the 
Community (44). Cooperauon of the People in Legislation and Govern- 
ment (44). Deposition of the Ruler in a case of necessity (45). 

The champions of an intermediate theory (45). Limited Monarchy (45). 
The Mixed Constitution (45). 

The champions of the People's Sovereignty (45). They also maintain 
a contractual relationship between People and Ruler and so concede an 
independent right of ruling to the Ruler (45). But they declare the 
People to be the true Sovereign: 'populus maior principe' (45). Conse- 
quences touching Legislative Power (4S)- Deposition and punishment of 
the Ruler who neglects his duties (46). Popular Sovereignty in Leopold 
of Bebenburg (46). The system of Marsilius of Padua (46). The system 
of Nicholas of Cues (47). Similar doctrines in cent. xv. (48). 

2. Development of analogous thoughts about the Church and their 
significance in political theory (49). Survival of the idea of a right of 
the ecclesiastical Community even within the Doctrine of an Absolute 

d 9 



Hi Political Theories of the Middle Age. 

papal Monarchy (49). Superiority of Council over Pope in matters of 
faith (50). Extension of this Superiority to other matters (50). Bolder 
doctrines after the beginning of cent. xiv. (51). Transfer to the eccle- 
siastical sphere of the idea of Popular Sovereignty (51). John of Paris (51). 
Marsilius (51). Ockham (52). The writers of the Concihar Age (52). 
The system of Conciliar Sovereignty in d'Ailly, Gerson, Zabarella, Andreas 
Randuf, Dietrich of Nieni and their contemporaries (52). The 'Subject' 
of Ecclesiastical Power (52). Rights of the Council over the Pope (53), 
Idea of the Mixed Constitution in the Church (53). Its relation to the 
idea of Monarchy in the Church (54). Nicholas of Cues and the principle 
of the Sovereignty of the Community (54). Gregory of Heimburg (57) 
The Canonists (57). Antonius Rosellus (57). Beginning of the scientific 
reaction in favour of the Papacy with a general negation of Popular 
Sovereignty (57). Torquemada (57). 

The Conciliar Movement does not call in question the exclusive right 
of the Clergy in the Church (57). At the most it admits a subordinate 
participation on the part of the Temporal Magistrate (57). Even when 
the Church is regarded as a Fellowship of the Faithful this does not 
concede active rights to the Laity (58). Still even in the Middle Age 
there are precursors of the Reformers' ideas of the Universal Priesthood 
and of the rights of the Christian commune (58). But even the medieval 
theories of this tendency are apt to issue in an introduction of the 
Temporal Magistrate into the Church (58). Marsilius on the rights of the 
Laity (58). Ockham on the rights of the Laity (59). 

VII. The Idea of Representation. 

The representative character of the Monarch (61). Pope and 
Church (62). Kaiser and Ikeich (62). Perception and theoretical formu- 
lation of the contrast between the private and public capacities of the 
Monarch, between his private property and State property, between acts 
of the Man and acts of the Ruler (63). Relation of the People as a whole 
to the Body of the People (63). Rights of the People to be exercised 
by the People collectively, not distributively (63). Requirement of a con- 
stitutional Assembly (63). Application of the Doctrine of Corporate 
Resolutions (64). To the Council (64). To Temporal Assemblies (64). 
Extension to Nations of the Doctrine of Corporate Delict (64). Exercise 
of the Rights of the People by Representative Assemblies (64). Repre- 
sentative functions of the Council (64). Their scope (65). Their 
foundation in Election (66). Representation of the People in the 
State (66). Parliamentary system of Nicholas of Cues (66). Marsilius 



Analytical Summary. liii 

reserves the exercise of true rights of Sovereignty for a primary Assembly 
(66). Limited representative functions of collegiate bodies (66). Leopold 
of Bebenburg on the Prince Electors (66). The Cardinals (66). Be- 
ginnings of the doctrine that the Representatives of the People act repre- 
sentatively when, and only when, they act as a Corporate Whole (67). 

VIII. The Idea of Personality. 

Personality of Church and State (67). The idea does not receive at 
the hands of the Publicists the development that might have been ex- 
pected (68). The professional Jurists work with this idea, but employ 
only a 'fictitious' personality developed within the province of Private 
Law (68). Hence a tendency which increasingly prevails until our own 
day (68). Church and State as juristic persons for the Jurists (69). 
Baldus on the State's Personality (69). No application of the notion of 
Personality by the Publicists when they discuss the 'Subject' in which 
State-Power resides (70). Disruption of the State-Person into two 
'Subjects' embodied respectively in Ruler and People (70). The Ruler's 
Personality (7 1 ). The Community as a ' Subject ' of rights and duties (71). 
The concept of the People tends to take the 'individual-collective' 
shape (72). In the Church (72). In the State (72). Influence of this 
on the theory of Representation (72). Germs of the later theories of 
Natural Right (73). 

IX. The Relation of the State to Law. 

The ancient Germanic conception of a Reign of Law yields before the 
influence of Antiquity (73). The Idea of the State becomes independent 
of the Idea of Law (73). Howbeit, genuinely Medieval Thought holds 
fast the independence of the Idea of Law (74). Solution of the problem 
by a distinction between Positive and Natural Law (74). 

The Medieval Doctrine of Natural Law (74). The lex naturalis before 
and above all earthly power (75). The ius naturale strictly so called (75). 
The ius divinum (75). The ius gentium (76). Limitation of the 
principle (76). 

The Medieval Doctrine of Positive Law (76). The ius civile as 
product, instrument and sphere of human power (77). Exaltation of the 
Ruler above the Law (77). Resistance to this on the part of the advocates 
of the People's Sovereignty (78). But they contend for a Popular Assembly 
which is similarly before and above all Positive Law (78). 

AppHcation of these principles to the Rights given respectively by the 



liv Political Theories of the Middle Age. 



two kinds of Law (78). Rights derived from Positive Law are subjected 
to the free disposal of the Sovereign (79). The conflict between Martinus 
and Bulgarus (79). The Right of Expropriation as a right of Sovereignty 
(79). Establishment of limitations to this Right (79). Requirement of 
iusta causa (80). Compensation for the expropriated (80). Acquired 
Rights protected only in so far as they are grounded on Natural Law (80). 
The scheme of Property Law proceeds from the ius gentium (80). The 
binding force of Contracts derived from the ius naturae (80). A ius 
mere positivum is not protected against the Sovereign (81). Revocation 
of privileges (81). 

Absolute validity of Rights and Duties which flow immediately from 
the Law of Nature (81). They need no 'title' and cannot be displaced 
by any 'title' (81). Innate and indestructible Rights of the Individual (81). 
Original and essential Rights of Superiority residing in the Whole Com- 
munity (82). Development of a Doctrine of a State-Power one and 
indivisible involved in the very idea of the State (82). Completion of 
the idea of Sovereignty (83). Inalienable Rights of the Crown (83). 
Inalienable Rights of the People (83). Distinction between Rights of 
Sovereignty and Fiscal Rights (83). Sharp severance of Public and 
Private Right (83). 

Medieval Doctrine as to the effect of Acts of State which transcend 
the limits of State-Power (84). Genuinely medieval doctrine holds such 
acts to be formally null and void (84), Consequences (84). A modern 
tendency appears which will make the Sovereign formally omnipotent in 
the sphere of Law (84). Consequences (85). Still there is life in the 
notion that the limits set to State-Power by Natural Law are truly legal 
limits (85). Consequences (85). Beginnings of a contrary doctrine (86). 
Machiavelli (86). Politics and Natural Law in later times (86). 

X. The Beginnings of the Modern State. 

The modern elements in medieval doctrine (87). Preparation for the 
' nature-rightly ' construction of Society (87). Absolutism and Indi- 
vidualism (87). 

Theories touching the Origin and Legal Foundation of the State (88). 
Transition from the State of Nature to Civil Society (88). The Contract 
of Subjection (88). How arises that Society which erects a State? (88). 
The Theory of a Social Contract (89). The aim and object of the 
State (90). Its rights are measured by its aim and object (91). Demand 
that Public Law be brought into accord with the Principles of Reason (92). 
The cry for Reformation (92). 



Analytical Smnmary. iv 



The fundamental notions of Public Law (92). The Idea of 
Sovereignty (93). Formulation thereof in the Middle Age (93). But 
not then exalted to its modern height (93). Still it necessarily induces 
a concentration of all State Power at a single point (94). The concen- 
trated State Power begins to claim an equal and equally immediate 
control over all individuals (94). Tendency towards a dissolution of all 
intermediate Communities (94). Development of the notion of the State 
as The (exclusive) Community (94). 

Reservation of equal or superior rights of the Church (94). But 
ahready Medieval Theory is preparing an absorption of Church in 
State (94). The Church is pure State Institution for Marsilius of 
Padua (95). Particular consequences of the same principle drawn by 
other writers (95). 

The Medieval Idea of the Empire shattered by the Modern Idea of the 
State (95). Reception of the Aristotelian definition of the State (96). 
Inconsequence of Philosophers who adopt it (96). Inconsequence of 
Jurists (96). Gradual emergence in philosophic doctrine of the State's 
exclusive character (97). Aid derived from the legist's concept of an 
universitas superiorem non recognoscens (97). External Sovereignty becomes 
the characteristic mark of the State (97). Above there is no room for 
a World-State and below there are only communes and corporations (97). 

The concentration of all State Life at a single point did not necessarily 
imply a concentration at that point of all Communal Life (97). Idea 
of the Organic Articulation of Communities within the State (98). Still 
on the whole, even in the Middle Age, the prevailing tendency of Theory 
is towards such an exaltation of the State's Sovereignty as would make the 
State the only representative of Communal Life (98). In this direction 
Philosophy precedes Jurisprudence with giant strides (98). Theoretic 
dissolution of the independent lordship-rights of Germanic origin (99). 
Treatment by Philosophy of Germanic fellowship-rights (99). Natural Law 
outlaws the Corporation (100). 



SUBJECT MATTER OF THE NOTES' 



NOTE PAGE 

1 Importance of the Jurists ... loi 

2 Macrocosm and Microcosm loi 

3 Unity as Source and Goal . . loi 

4 Partial Wholes 102 

5 The Praises of Unity 102 

6 The Purpose of Corporate 

Mankind 103 

7 The Universal Church and 

the Commonwealth of 
Mankind 103 

8 Priesthood and Realm 104 

9 Temporal Power of the Pope 

and the Principle of Unity 104 

10 Absorption of State in 

Church 105 

11 Insufficiency of an Invisible 

Unity 106 

12 Temporal Sovereignty of the 

Pope 106 

13 Direct Power of the Pope in 

Temporalities 107 

14 Inferiority of Temporal 

Power 108 

15 The Powers that be are or- 

dained of God 109 

16 Sinful Origin of the State ... 109 

17 Ordination of State by 

Church no 

18 The State an Ecclesiastical 

Institution in 

19 The Sphere of Temporal is 

defined by Spiritual Law . 112 

20 Subjection of Temporal 

Power 112 

21 Temporal Rulers as Servants 

of Church and Pope 113 



NOTE PAGE 

22 The High Church Doctrine 

of the Two Swords 113 

23 Emperors and Temporal 

Rulers as the Pope's 
Vassals 114 

24 The Temporal Sword at the 

Disposal of the Church ... 115 

25 Direct Use by the Church 

of theTemporal Sword... 115 

26 The Church should respect 

the Rights of Rulers 115 

27 Extraordinary Use of Tem- 

poral Power by the Church 116 

28 Translation of the Empire 

by the Pope 116 

29 Translatio Imperii 116 

30 Papal Appointment of 

Kaisers and Kings 116 

31 The Pope and the German 

Electors 117 

32 The Pope's Part in the 

Election of an Emperor. 117 

33 The Pope's Guardianship of 

the vacant Realm I17 

34 The Pope's power to de- 

pose Rulers and free 
Subjects from the Oath 
of Fealty 117 

35 The Pope's power over Rulers 

other than the Emperor... II 8 

36 Reminiscences of the Sub- 

jection of Church to Realm 118 

38 Church and State are co- 

ordinate 118 

39 Temporal Law is not de- 

pendent on the Canons ... 118 



1 The titles given to the notes proceed from the translator. 



Subject Matter of the Notes. 



Ivii 



NOTB PAGE 

40 Imperium non dependet ab 

ecclesia 119 

41 Imperialists on Papal Claims 120 

42 The Church a purely Spiritual 

Realm 121 

43 Imperialists concede supe- 

rior Dignity of the Church 122 

44 The Celestial Head gives 

sufficient Unity to the two 

powers 122 

4« Church and State in Co- 

operation 122 

46 Superiority of Church in 

Spirituals and of State in 
Temporals 123 

47 Occasional Interference of 

Pope in Temporal Affairs 124 

48 Occasional Interference of 

Kaiser in Spiritual Affairs 124 

49 Unity within the Church ... 124 

50 The Church and the Infidels 124 

5 1 The Church is a State, Polity 

or Commonwealth 125 

53 The Necessity of External 

Unity doubted 125 

52' The Church as conceived by 

WyclifandHus 125 

53 Universality of the Empire . 125 

54 Legitimacy of the Roman 

Empire 125 

55 Transfer of the Empire 126 

56 Universal Extent of the Em- 

pire 126 

57 The Empire is indestructible 

de facto 127 

58 The Empire is indestructible 

de iure 127 

59 Exemption from the Empire 

by Privilege or Prescrip- 
tion 128 

60 Exemptions would not de- 

stroy theoretical Univer- 
sahty 128 

61 Necessity of an Universal 

Realm denied 128 



NOTE PAGE 

62 Wider and narrower Groups 128 

63 Independence of the smaller 

Groups 12S 

64 Graduated Articulation of 

Communities 129 

66 The Organic Comparison ... 129 

67 The Mystical Body and the 

Pope as its Head 130 

68 Bicephalism would be mon- 

strous 130 

69 Need for a Temporal Head 130 

71 Possibility of Many-headed- 

ness 130 

72 The Priesthood as Soul of 

the Body Politic 130 

73 The Representation of Soul 

by the Priesthood ques- 
tioned 131 

74 The Catholic Concordance 

of Nicholas of Cues 131 

75 The Body Mystical, Moral, 

Politic 131 

76 Anthropomorphic Conceits . 131 

77 The beginnings of Anthro- 

pomorphism 132 

78 Anthropomorphism con- 

tinued 132 

79 Anthropomorphism and 

State Medicine 132 

81 Some Theories of Aquinas .. 133 

82 Harmony of Organic Forces 133 

83 Coordination of Limbs 133 

84 Goods of State and Goods 

of Individual 133 

86 Mutually Supplettve Power 

among Organs 133 

87 The Idea of Membership ... 134 

88 Likeness and Unlikeness 

among Members 134 

89 Mediate Articulation 134 

90 Papal Absolutism and the 

Mediate Articulation of 
the Church 135 

91 Organization and Interde- 

pendence 135 



iviii Political Theories of the Middle Age. 



NOTE PAGE 

92 The Idea of Function 135 

93 The Idea of Organ 135 

94 The Governing Part 135 

96 Connexion with a Rightful 

Head 136 

97 Need for a single Head 

denied 136 

98 The State a work of Human 

Reason 136 

99 Marsilius on the Origin of 

the State 136 

100 The Divine Monarchy 137 

loi Divine Origin of the State 137 

102 Immediately Divine Origin 

of the State 138 

103 The Pope as Christ's Vicar 138 

104 The Emperor as Christ's 

Vicar 138 

105 Mediation of the Church 

between the State and 
God 138 

106 Delegation by God of all 

Human Power 139 

107 Monarchy and Unity 139 

108 Singleness of Will in a 

Monarchy 139 

109 The Church a Monarchy... 139 
no Divine Institution of Tem- 
poral Monarchy 139 

111 Monarchythe Normal Form 

ofGovemment 139 

112 References to Republics ... 140 

113 Comparison of Forms of 

Government 140 

114 An Aristocratic World-State 140 

115 Necessity of Monarchy in 

the Church doubted 140 

116 Preference of the Repub- 

lican Form 140 

117 'Unitas principatus' in a 

Republic 140 

118 Republican Assembly as a 

Collective Man 140 

119 The Monarch outside and 

above the Group 141 



NOTE PAGE 

120 The Monarch represents 

Divinity 141 

121 Apotheosis of the Pope ... 141 

122 Apotheosis of the Emperor 141 

123 Kingship is Office 141 

124 Princes exist for the Com- 

mon Weal 142 

125 Purpose of the Ruler 142 

126 Declension to Tyranny ... 142 

127 God rather than Man is to 

be obeyed 143 

128 Passive Resistance 143 

129 Nullity of Commands that 

are ultra vires statuentis 143 

130 Active Resistance and Ty- 

rannicide 143 

131 The Pope's Plenitude of 

Power 144 

132 Limits to Papal Sovereignty 144 

133 Limited Monarchy of the 

Pope 145 

134 Conditional Obedience due 

to the Pope. The Law 

of Necessity 145 

136 Limited Monarchy in the 

Empire 145 

137 The State of Nature 145 

138 Beginnings of the Original 

Contract 146 

139 Right of a People to choose 

a Superior 146 

140 The People as instruments 

of God 146 

141 God and the People as the 

Source of Power 146 

142 TheLexRegia 147 

143 Voluntary Subjection the 

Ground of Lordship 147 

146 Rights of the Burghers of 

Rome when the Empire 

is vacant 147 

147 The People of Rome and 

the Roman People 147 

148 The People's Part in the 

Translation of the Empire 147 



Subject Matter of the Notes. 



lix 



NOTE PAGE 

149 The Roman Citizens and 

the Translation 148 

1 50 Right of the People during 

a Vacancy of the Em- 
pire 148 

151 The Right to choose a 

Ruler 148 

152 Consensual Origin of Here- 

ditary Kingship 148 

153 Elective Rulership is pre- 

ferable 149 

154 The Empire Elective 149 

155 Theory and the Princely 

Electors 149 

156 The Pope as a Popular 

Delegate 149 

157 Election, not Coronation, 

confers the Imperial 
Rights 149 

158 Lex Regia: an irrevocable 

Conveyance 150 

159 Lex Regia : a revocable 

Delegation 150 

160 Absolute Monarchy and the 

Will of the People 150 

161 Nullity of the Monarch's 

Acts if they impair his 
Fundamental Rights ... 150 

162 Nullity of Acts subjecting 

the Empire to the Church 1 50 
1 64 The Right to depose a Ruler 

in a case of Necessity ... 151 

16s The Mixed Constitution ... 151 

167 Justice to be done upon the 

Ruler 152 

168 The Deposition of Kings... 152 

171 The Projects of Nicholas 

of Cues 153 

172 Popular Sovereignty in 

France 153 

173 Papal Theory of General 

Councils 153 

174 Papal Elections : Repre- 

sentative Character of 
Cardinals 154 



176 



177 



178 



179 



180 



182 



183 
184 



187 



188 



189 

190 
191 

192 
193 



194 



19s 



196 



197 
198 



Deposition of an Heretical 
Pope 

The Heretical Pope is de- 
posed ipso facto 

In Matters of Faith the Pope 
is below the Council 

Deposition of aSchismatical 
or Criminous Pope 

Rejection of a Pope in a 
case of Necessity 

Marsilius on Pope and 
Council 

Divine Right of the Papal 
Primacy contested 

Abolition of Papal Primacy 
suggested 

The Council may judge the 
Pope 

Right of the Church to as- 
semble and to constitute 
a Council 

Theory of the Conciliar 
Party 

Gerson's Theory 

Practical Powers of the 
Council 

Power of the Church to 
assemble..... 

Power of the Council during 
a Vacancy of the Holy 
See 

The Cardinals are Repre- 
sentatives of the Whole 
Church 

An independent position as- 
signed to the Cardinals . 

Mixed Government in the 
Church 

The Council above the 
Pope 

Gerson on Divine Right of 
the Papacy 

Popular Sovereignty in the 
Church 

Canonists and the Council 



k Political Theories of the Middle Age. 



NOTE PAGE 

203 System of Antonius de 

Rosellis 160 

204 Popular Sovereignty denied 161 

205 Lay Representatives in the 

Councils 161 

206 The Church an Institution 

rather than a Fellowship 161 

208 Fallibility of every part of 

the Church 161 

209 The Laity and the Election 

of Popes 162 

210 The Emperor's Part in 

Papal Elections 162 

211 The Temporal Magistrate 

a Representative of the 
Laity 162 

212 The Objectification of Office 

or Dignity 162 

213 The Prelate as Representa- 

tive of his Church 162 

214 Is the Pope the Church?... 162 

215 Is the Pope's Representa- 

tion of the Church un- 
limited? 162 

216 Representation of the Em- 

pire by the Emperor 163 

217 Representative Character 

of Kingship 163 

218 The Monarch's double Per- 

sonality 163 

219 King's Property and State's 

Property 164 

220 Acts of the Prince and Acts 

of the Man 164 

222 Duties towards Individuals 

and Duties towards the 
Community 164 

223 Rights of the Community 

exercised by its Active 
Members 165 

224 Representation of the 

People as a System of 
Estates 165 

225 Will of the People ex- 

pressed by Assemblies . 165 



NOTE PAGR 

226 Rules of Corporation Law 

applied to Political As- 
semblies 165 

227 Corporation Law and the 

General Council 166 

228 Majorities how reckoned... 166 

229 Majorities and Nations in 

the Council 167 

230 The Majority as a Repre- 

sentation of the Whole... 167 

231 Corporate Torts of the 

Roman People 167 

232 Representative Character 

of the Council 167 

233 The Council a mere Repre- 

sentative 168 

234 Election and Representa- 

tion 168 

235 Election of Lay Repre- 

sentatives 168 

236 RepresentationinTemporal 

Assemblies 168 

238 The Representative Parlia- 

mentarism of Nicholas of 
Cues 169 

239 The Radicahsm of Mar- 

silius 169 

240 The Prince Electors as 

Representatives 169 

241 The Cardinals as Repre- 

sentatives 169 

242 Corporation Law and Im- 

perial Elections 170 

243 Corporation Law and Papal 

Elections 170 

244 Churches as Corporations . 170 
24s The Empire or State as 

Corporation 171 

246 The State has no Will 171 

252 Mere Collectivism in the 

Concept of the State ... 171 

253 The Church as a Subject of 

Rights 171 

254 The People as Collective 

Unit 172 



Subject Matter of the Notes. 



Ixi 



NOTE PAGE 

255 The Law of Nature and the 

Essence of Law 172 

257 Nullity of Laws contra- 

vening the Law of Nature 1 74 

258 Revealed Law and Natural 

Law 174 

259 Nature of the lus Gentium 1 75 

260 Principles and Secondary 

Rules of the Law of 
Nature 175 

261 Positive Modifications of 

the Law of God 175 

262 Primeval and Secondary 

lus Gentium 176 

263 Mutability of Positive Law 176 

264 The Prince and Positive 

Law 176 

265 Potestas legibus soluta 176 

266 Only in a Republic is the 

Ruler below the Laws ... 177 

267 The Ruler is always below 

the Laws I77 

268 The 'Rechtsstaatsidee' ... 177 

269 Popular Assemblies above 

the Laws 178 

270 Omnia principis esse in- 

telliguntur 178 

271 Eminent Domain 178 

272 The Right of Expropria- 

tion 179 

273 No Expropriation without 

Just Cause: an absolute 
Rule of Law 179 

274 No Expropriation without 

Just Cause : a good 
general Rule 179 

275 Compensation for the Ex- 

propriated 180 

276 No Compensation in case 

of General Expropriatory 
Law 180 

277 No Compensation in a case 

of Necessity 180 

278 Proprietary Rights proceed 

from the lus Gentium ... 180 



NOTE PAGE 

279 Sacredness of Contracts 

made by the State 181 

280 Rights founded on Positive 

Law are at the mercy of 
the State 181 

281 Revocation of ' Privileges' . 181 

283 Nullity of the Donation of 

Constantine 182 

284 Inalienability of Public 

Power 182 

285 Nullity of Acts tending to 

diminish the State's 
Power 183 

286 Inalienability of Sove- 

reignty 183 

287 Indestructible Sovereignty 

of the People 183 

288 Essential Rights of the State 

and casually acquired 
Rights of the Fisc 183 

289 Gradual apprehension of 

the Distinction between 
lus Publicum and lus 
Privatum 184 

290 Nullity of the Sovereign's 

Acts if they conflict with 
Natural Law 184 

292 Tribunals must give effect 

to Acts of the Sovereign 

if done deliberately 185 

293 Natural Law not reduced to 

the level of mere Ethics . 185 

294 Coercive and Directive 

Force of Law 185 

295 Legal Limits to the Duty 

of Obedience 186 

296 Unjust Acts of Sovereignty 

to be interpreted into 
Rightfulness 186 

297 Discharge of the Sovereign 

from the Moral Law 186 

302 Natural Growth of the 

State 186 

303 Rational Origin of the 

State 187 



ixii Political Theories of the Middle Age. 



NOTE PAGE 

304 The State erected by Vio- 

lence 187 

305 The State founded by In- 

corporation 187 

306 The Social Contract 187 

307 Voluntary Subjection the 

Ground of Obedience... 1 88 
30B The Terms of the Contract 

of Subjection 188 

310 Limitation of the Work of 

the State to the Main- 
tenance of Peace and 
Law 188 

311 Purposes of State and 

Church 189 

312 Extension of the State's 

Power in a Spiritual 
Direction 189 

313 Spiritual Aims of the State 189 

315 Lessons in the Art of 

Government 190 

316 The Forms of Government 190 

319 Possible Limitation of 

Monarchy 190 

320 Mixed Constitutions 190 

323 The Growth of the Modem 

State. The Taxing Power 190 

324 Equality before the Law ... 191 

325 State and Citizen. Influ- 

ence of Antiquity 191 

326 The Marsilian Absorption 

of Church in State 191 

327 Attitude of the State to- 

wards the Church 192 



NOTE PAGE 

328 Church Property and Public 

Property 192 

329 The State's Right to reform 

the Church 193 

330 lus Sacrum is part of lus 

Publicum 193 

332 Definition of the State 193 

333 State, Realm, Empire, 

Civitas 193 

334 The Imperium as the only 

true Civitas 194 

335 Legal Definitions of Civitas 194 

336 City and Republic 194 

337 The State cutting itself 

loose from the Empire... 195 

338 Communities which do and 

Communities which do 
not recognize a Superior 195 

339 No Community above the 

State and only Communes 
below the State 195 

340 Federal States 195 

341 Resistance to the Central- 

izing Idea of the State... 196 

342 Political Theory and Feu- 

dalism 196 

343 All other Power is derived 

by Delegation from Sove- 
reign Power 197 

344 Early Officialism 197 

345 All power proceeds from 

and is revocable by the 
State 197 



LIST OF AUTHORITIES. 



I. The Medieval Publicists. 



Century XI. 

1. Petrus Damiani (bom about 990, died 1072). Opera: ed. Migne, 

Patrologiae Cursus Corapletus, Tom. 145. [See also Libelli de Lite 
(Mon. Germ.) i., p. 15 ff] 

2. Gregory VII. (pope 1073 — 1085). Registrum; a collection of his 

letters compiled, according to JafK, by himself; together with such 
letters as have otherwise become known; edited by Jaffe, BibUotheca 
rerum Germanicarum, 11. (Monumenta Gregoriana, Berol. 1865); 
also in Migne, Tom. 148. 

3. Henry IV. (reign. 1053 — 1106). Laws and Proclamations in Monu- 

menta Germaniae, Leges 11., p. 14 sq. 

4. Petrus Crassus Cardinalis. Complaint against Gregory VII. on behalf 

of the Synod at Brixen on 25 June 1080 : in Sudendorf, Registrum, 
Jenae, 1849, i., pp. 22 — 50; compared with the edition in Picker, 
Forschungen, iv., pp. 106 — 124. [See Libelli de Lite (Mon. Germ.) 
I. 432 ff.] 

5. Wenrich of Trier. Epistola ad Gregorium VII. Papam, d. a. 1083 ; in 

Martene, Thesaurus Novorum Anecdotorura, I., pp. 214 — 230. [See 
Libelli de Lite (Mon. Germ.) i., p. 280 ff.] 

6. Manegold of Lautenbach. Tract against Wenrich, written 1085 (comp. 

P. Ewald, in Forsch. zur Deut. Gesch., vol. 16, pp. 383—5) ; extracts 
in Floto, Heinrich IV., vol. 11., pp. 299—303, and information in v. 
Giesebrecht, Magister Manegold v. Lautenbach, Sitzungsberichte 
der Bair. Akad. 1868, 11., pp. 297—326. [See LibeUi de Lite (Mon. 
Germ.) i., p. 301 ff.] 

7. Wido Episcopus Ferrariensis. De scismate Hildebrandi; composed 

in 1086 (according to the most recent investigation: K. Panzer, 
Wido v. Ferrara de scismate Hildebrandi, Leipz. 1880); ed. 
Wilmans in Mon. Germ. Scriptores xii., pp. 148—179. [See Libelli 
de Lite (Mon. Germ.) i., p. 529 ff.] 



ixiv Political Theories of the Middle Age. 



8. Walram Episcopus Naumburgensis. De unitate ecclesiae conser- 

vandae; composed 1093; in Schard, De iurisdictione auctontate 
et praeeminentia imperiali ac potestate ecclesiastica, Basil. 1566, 
pp. 1—126. [See Libelli de Lite (Men. Germ.) 11., p. 285 fif.] 

9. Letter of the Schismatical Cardinals against the Decree of P. 

Gregory VIL an. 1095; in Sudendorf, loc. cit. 11., nr. 34, pp. 

45—90- 

10. Deusdedit Cardinalis (d. 1099). Contra invasores et simoniacos et 

reliquos schismaticos ; in Mai, Nova P. P. Bibl. vii., pars ult., pp. 
77— III (only a very imperfect extract in Migne, loc. cit., Tom. 
150, pp. 1569—72). [See Libelli de Lite (Men. Germ.) 11., p. 
292 ff.] 

11. Goffredus abbas Vindocinensis (d. 1132). Opera omnia; in Migne, 

loc. cit., Tom. 157. [See Libelli de Lite (Mon. Germ.) 11., p. 
676.] 

12. S. Anselmus Cantuariensis archiepiscopus (1033 — 1109). Opera 

omnia; in Migne, loc. cit., Tom. 158 — 9. 

13. Ivo Carnotensis episcopus (d. 1115). Opera omnia; in Migne, loc. 

cit., Tom. 161 — 2 ; the Epistolae in Tom, 162. [See Libelli 
de Lite (Mon. Germ.) 11., p. 640 flf.] 



Century XII. 

14. Sigebert of Gembloux. Writings in defence of the Church of 

Liittich against Paschal IL, d. a. 1103; in Jaffd, Bibl. rer. Germ. v. 
201 flf.; also in Schard, loc. cit., pp. 127 — 141. [See Libelli de Lite 
(Mon. Germ.) 11., 436 flf.J 

15. Tractatus de investitura episcoporum per imperatores facienda; a. 

1 109; in Schard, loc cit., pp. 711 — 17 and Kunstman in Tiib. 
Theol. Quartalschrift for 1837: ascribed to Walram by Schard; 
ascribed to the diocese of Liittich by Bernheim, Forsch. zur Deut 
Gesch., vol. 16, pp. 281 — 95. [See Libelli de Lite (Mon. Germ.) 
II., p. 495 ff.] 

16. Hugo Floriacensis. Tractatus de regia et sacerdotal! dignitate; written 

between 1100 and 1106; in Stephani Baluzii Miscellaneorum hber 
quartus, Paris, 1683, pp. 9—68. [See Libelli de Lite (Mon. Germ.) 
II., 465.] 

17. Honorius Augustodunensis (d. soon after 1152). Summa gloria de 

Apostolico et Augusto sive de praecellentia sacerdotii prae regno; 
in Migne, Tom. 172, pp. 1257—1270. [See Libelli de Lite (Mon. 
Germ.) iii., p. 29 ff.] 



List of Authorities. ixv 

18. Hugo de S. Victore (d. 1141). Opera omnia; in Migne, loc. cit, 

Tom. 175—7. 

19. S. Bernhardus abbas Clarevallensis (1091 — 1153)- Operaomnia; in 

Migne, loc. cit, Tom. 182 — 6 (Nov. ed. Paris. 1879): especially 
the Epistolae (Tom. 182, p. 67 sq.) ; those to the Emperor Lothar 
and King Conrad, also in Goldast, Monarchia Romani Imperii, 
Hanov. 1612, 11., p. 66 sq. ; and the Tract De consideratione libri v. 
ad Eugenium III. Papam, Lc, Tom. 186, p. 727 sq. (in Goldast, l.c., 
p. 68 sq.). 

20. Gerhohus Reicherspergensis (1093 — 1169). Opera omnia; in Migne, 

1. c, Tom. 193 — 4. [See Libelli de Lite (Mon. Germ.) iii., p. 

131 ff-] 

21. S. Thomas Cantuariensis archiepiscopus (Thomas Becket, 11 16 — 

1 170). Opera omnia; in Migne, 1. c, Tom. 190. 

22. Johannes Saresberiensis (11 20 — 1180). Opera omnia; in Migne, 

Tom. 199; therein the Epistolae, p. i sq., the Polycraticus, ann. 
iiS9i P- 3^5 sq. ; for the latter the edition used was Polycraticus 
sive de nugis curialium et vestigiis philosophorum libri octo, Lugd. 
Bat. 1639. 

23. Frederick I. (reign. 1152 — 11 90). Laws and Proclamations in 

Monumenta Germaniae, Leges 11., p. 89 sq. and Boehmer, Regesta 
Imperii ; Information in Wibald and Otto of Freisingen. 

24. Wibald of Stablo and Corvey. Epistolae ; in Jaflf^, Monumenta Cor- 

beiensia, Berol. 1864. 

25. Writings of the Arnoldists, 1152, in Wibald's Book of Concepta, in 

Jaffd, 1. c. 

26. Otto Frisingensis (b. not before iiii, d. 1158). Chronicon; com- 

posed between 1 143 — 6 ; in Monumenta Germaniae, Scriptores, xx., 
p. 131 sq. — Gesta Friderici (to 1156) with the continuation by 
Ragewin(to 1160) ib., p. 351 sq. 

27. Alexander III. (pope 1159 — 1181). Opera; in Migne, 1. c, Tom. 

200. 

28. Petrus Blesensis (d. 1200). Opera omnia; in Migne, 1. c, Tom. 207. 

29. Petrus Blesensis iunior (nephew of the above). Opusculum de dis- 

tinctionibus sive Speculum iuris canonici, ed. Reimarus, Berol. 
1837; written about 11 80. 

30. Innocent III. (pope 1198 — 1216). Opera; in Migne, 1. c., Tom. 

214 — 7 ; therein the collection of his letters (vols. 214 — 6) and the 
Registrum supernegotiis Romani Imperii (vol. 216, p. 995 sq.). 

31. Philip of Swabia (1198 — 1208) and Otto IV. (1198 — 1218) in Monu- 

menta Germaniae, Leges 11., p. 201 sq. 



M. 



ixvi Political Theories of the Middle Age. 



Century XIII. 

32. Frederick II. (1211—1250), in Monumenta Germaniae, Leges 11., 

p. 223 sq.; in P. Huillard-BrdhoUes, Historia diplomatica 
Friderici II., Paris, 1859 sq. ; and in Petrus de Vineis. 

33. Petrus de Vineis (Chancellor of Frederick II.). Epistolaej Basil, 

1566. Compare P. Huillard-Br^holles, Vie et correspondance 
de Pierre de la Vigne, Paris, 1865. 

34. Eike von Repgow in the Sachsenspiegel (between 1224 and 1235), 

ed. Homeyer, 3rd ed. 1861. 

35. German Poets of the time of the Hohenstaufen ; the passages 

collected by Hofler, Kaiserthum u. Papstthum, Prag, 1862, p. 
loSff. 

36. Gregory IX. (pope 1227 — 1243). Decretals in the Corpus iuris 

canonici ; and Letters in Raynald, Annal. eccl., vol. xiii. 

37. Innocent IV. (pope 1243 — 1254). Decretals in the Corpus iuris 

canonici ; and Letters in Raynaldj 1. c. 

38. Alexander Halensis (d. 1245). Summa theologica ; Col. 1622. 

39. S. Thomas Aquinas (d. 1274). Opera omnia; ed. Antverp. 1612 and 

Parm. 1852 — 72. — Summa Theologiae; ed. Migne, Paris, 1864; 
ed. Antv. vols. x. — xii. ; ed. Parm. vols. i. — iv. — Summa deveritate 
fidei contra gentiles; ed. Uccellius, Romae, 1878; ed. Antv. vol. ix.; 
ed. Parm. vol. v. — In quattuor libros Sententiarum magistri Petri 
Lombardi Comment.; ed. Antv. vols. vi. — vii.; ed. Parm. vols. 
VI. — vn. — Quaestiones disputatae and Quodlibetanae s. Placita; 
ed. Antv. vol. viii. ; ed. Parm. vols. viii. — ix. — Expositio on the 
Psalms; ed. Antv. vol. xiii. — Commentarius in Epistolas omnes 
Pauli; ed. Ant. xvi. — Commentary on the Ethics of Aristotle; 
ed. Antv. vol. v. ; ed. Parm. vol. xxi. — Commentary on the Politics 
of Aristotle ; ed. Antv. vol. v. ; ed. Parm. vol. xxi., p. 366 sq. 
(our citation of pages refers to this edition). — Opuscula omnia 
theologica et moralia, Paris, 1656; in ed. Antv. vol. xvii.; ed. 
Parm. vols. xv. — xvi. — In particular, Opusc. i contra errores 
Graecorum.— Opusc. 34, p. 534 sq. (or Opusc. 19) contra im- 
pugnantes religionem.— Opusc. 40, p. 843 sq. (or Opusa ai) de 
regimine ludaeorum ad Ducissam Brabantiae. — Opusc. 39, p. 
764 sq. (in ed. Antv. Opusc. 39, f. 160™, in ed. Parm. vol. xvi., 
p. 224 sq.) de regimine principum ad regem Cypri; unfinished, 
since only lib. I. and Ub. 11. c 1—4 come from him, and the 
continuation is by Ptolomaeus of Lucca.— See Baumann, die 



List of Authorities. ixvii 

Staatslehre desh. Thomas v. Aquino, Leipz. 1873. Nic. Thoemes, 
Commentatio literaria et critica de S. Thomae Aquinatis operibus 
ad ecclesiasticum, politicum, socialem statum 'reipublicae Chris- 
tianae ' pertinentibus deque eius doctrinae fundamentis atque prae- 
ceptis, Berol. 1874. 

40. Vincentius Bellovacensis (d. 1274 or 1264). Speculum doctrinale, 

lib. VII. — XI. ; ed. Duaci, 1624. 

41. Schwabenspiegel (about 1275), ed. Lassberg, 1840. 

42. Jordanus of Osnabriick, De praerogativa Romani imperii; written 

about 1 28 1, probably in 1285; ed. by Waitz in the Abhandlungen 
der kon. Gesellschaft der Wiss. zu Gottingen, vol. 14, p. 43 ff. 

43. Aegidius Romanus Colonna (1247 — 1315). De regimine principum 

libri III.; written after 1280; ed. per Simon. Bevilaquam, Venet. 
1498. — De potestate ecclesiastica libri tres, from the description 
and analysis of its contents by F. X. Kraus, Oesterr. Vierteljahrs- 
schrift fiir kathol. Theol., vol. i. (Wien, 1862), p. 11 ff. 

44. Engelbert of Volkersdorf, Abbot of Admont (1250 — 1311). De 

regimine principum; written in all probability after 1290; ed. 
Jo. Georg. Theophil. Huffnagl, Ratisbonae, s. a. — De ortu, pro- 
gressu et fine Romani imperii liber; probably between 1307 and 
1310; ed. Basil. 1553. 

45. Ptolomaeus of Lucca. De regimine principum; written after 1298; 

as a continuation of Thomas Aquinas, De regimine principum. 

46. Dante Alighieri (1265 — 1321). De Monarchia libri tres; written 

about 1300 (according to Witte 1296 — 1299, according to Wegele 
not until 1311 — 1313); ed. altera per Carolum Witte, Vindobonae, 
1874. 

47. Boniface VIII. (pope 1294 — 1303). Decretals in the Corpus iuris 

canonici and letters in Raynald, 1. c. vol. xiv. 

48. Rudolf I. (1273 — 1291), Adolf (1292 — 1298) and Albert I. (1298 — 

1308) in Monumenta Germaniae, Leges 11., pp. 382 sq., 459 sq., 
466 sq. 

Century XIV. 

49. Johannes Parisiensis (d. 1306). Tractatus de regia potestate et papali; 

written about 1303 ; ed. in Schard, 1. c. pp. 142 — 224 ; in Goldast, 
1. c. II., p. 108 sq. 
60. Disputatio inter militem et clericum super potestate praelatis ecclesiae 
atque principibus terrarum commissa; written about 1303, perhaps 
by Peter Dubois; ed. in Schard, 1. c. pp. 677—687, Goldast, 1. c. 
I. 13 sq. 

e 2 



64 



ixviii Political Theories of the Middle Age. 

51. Cleraent V. (pope 1305 — 1314), in Corpus iur. can. and in Raynald, 

1. c. vol. XV. 

52. Henry VII. (1308 — 1313), in Monumenta Germaniae, Leges 11. 

p. 490 sq. 

53. Guilelmus Durantis iunior (d. 1328). Tractatus de mode celebrandi 

concilii et corruptees in ecclesia reform andi s ; written between 
1308 and 131 1 ; in Tractatus universi iuris, Venet. 1584, xiii. i 
p. 154 sq. 

54. Landulfus de Colonna. De translatione imperii; written 1310 17,20- 

ed. Schard, 1. c. pp. 284 — 297, Goldast, 1. c. 11. 88 sq. 

55. Lewis the Bavarian (1314 — 1348), in Boehmer, Regesta Imperii. 

56. John XXII. (pope 1316—1334), in Corpus iur. can. and in Raynald, 

I. c. 

57. Marsilius Patavinus of Maynardina (d. after 1342). Defensor pacis • 

composed between 1324 and 1326 with the help of John of 
Jandun; ed. s. 1. 1622; also in Goldast, 11. 154— 308.— Tractatus 
de translatione imperii; written in 1325 or 1326; in Schard, 1. a 
pp. 224—237, Goldast, II. 147—153. 

58. AugustinusTriumphusdeAncona(i243-i328). Summadepotestate 

ecclesiastica; written after 1324 (according to Riezler, but according 
to Friedberg about 1320); ed. Romae, 1583. 

59. Petrus Paludanus (Patriarch of Jerusalem). De causa immediata 

ecclesiasticae potestatis; written about 1329; from citations in 
Raynald, 1. c. ann. 1328, nr. 30—32 (vol. xv., p. 346 sq.) and 
Bellarmin, De scriptoribus ecclesiasticis, p. 271. 

60. Peter Bertrand (Bishop of Autun, afterwards Cardinal). De iuris- 

dictione ecclesiastica et politica; written 1329; ed. Goldast, 1. c. 

II. 1261 — 1283. 

61. Guilelmus Occam (ob. 1347). Opus nonaginta dierum; written soon 

after 1330; ed. Goldast, 1. c. 11. 993— 1236— Compendium errorum 
Papae Johannis XXIL; written 133S— 1338; ed. Goldast, 11. 957- 
976.— Octo quaestiones; written 1339— 1342; ed. Goldast, 11. 
314— 391— Dialogus; written in 1342 or 1343, but Pars 11. already 
m 1333 or 1334 ; ed. Goldast, 11. 398—957. 

32. Michael de Cesena. Letters of 133 1, 1333 and undated (but probably 

also 1333), in Goldast, 11. 1236, 1238, i244.-0ther writings re- 
latmg to the Minorite Quarrel, ib. pp. 1291-1344 

33. Alvarius Pelagius. De planctu ecclesiae; according to 11. art o. in 

fine, begun in 1330 and finishe'd in 1332 at Avignon, but according 
to Its last words revised a first time in 1335 at Algarbia in Portug^ 
and a second time m 1340 at Compostella ; ed. Lugd 1617 
Documents relating to the Unions at Lahnstein and Rensein 1338 in 



List of Authorities. ixix 

Ficker, zur Gesch. des Kurvereins von Rense, Sitzungsber. der k. k. 
Akad. der Wiss., vol. xi. (1853), Beilagen, p. 699 £f. 

65. Excerpta ex libro Nicolai Minoritae da controversia paupertatis 

Christi, in Boehmer, Fontes iv. 588 — 608. — Therein Articuli de 
iuribus imperii et praelatorum ac principum, ad quos pertinet 
imperatoris electio, et de iure domini Ludovici IV. imperatoris, of 
i338> p. 592 sq. — Tractate of 1338, p. 598 sq. — Opinions of 
Bonagratia of Bergamo, 1338, p. 606 sq. 

66. Definition of the rights pertaining to Elect Emperors and Kings 

according to the laws and customs of the Empire; ann. 1338; in 
Ficker, 1. c. nr. 6, p. 709 ff. 

67. Informatio de nuUitate processuum papae Johannis contra Ludov. 

Bavar., 1338, in Goldast, i. 18 — 21. 

68. Lupoid of Bebenburg (d. 1363). De iure regni et imperii; written 

between 1338 and 1340; ed. princeps s. t. 'Lupoldus de iuribus et 
translatione Imperii' Arg. 1508, and ed. in Schard, 1. c. pp. 328 — 
409. — Libellus de zelo catholicae fidei veterum principum German- 
orum ; ed. Schard, 1. c. pp. 410 — 465. — Ritmaticum querulosura et 
lamentosum dictamen de modernis cursibus et defectibus regni ac 
imperii Romanorum ; ed. Boehmer, Fontes, i. 479 sq. 

69. Konradof Megenberg (circ. 1309 — 1374). Oeconomica; written 1352 

— 1362 ; the dedicatory epistle and abstract of contents in Struve, 
Act. lit. Jenae 1706, Fasc. iv. 81 — 91. — Tractatus de translatione 
imperii, 1354 or 1355, and Treatise against Ockham from the same 
time; extracts given by Hofler, Aus Avignon, Prag, 1868, p. 26 ff. 

70. Johann von Buch. Gloss on the Sachsenspiegel ; ed. used being those 

by Zobel, Leipz. 1525, and by Gartner, Leipz. 1732. 

71. The Town-Clerk (Stadtschreiber) Johannes, in the Briinner Schoffen- 

buch ; second half of cent. xiv. ; ed. Rosier, die Stadtrecht v. 
Briinn, Prag, 1852. 

72. Petrarca (1304 — 1374). Epistolae de iuribus imperii Romani; circ. 

1350—7°; ed. Goldast, 11. pp. 1345 (1. 1445)— 1465. 

73. Quaestio in utramque partem disputata de potestate regia et ponti- 

ficali ; dedicated to Charles V. [of France], written probably about 
1364 — 1380, and according to Riezler perhaps by Raoul de Presles; 
in Goldast, 11. 95 sq. (French translation I. 39 sq.). 

74. Somnium Viridarii; written in 1376 or 1377, probably by Philippe de 

Mazibres; in Goldast, i. 58 — 229. 

75. Johannes Wycliffe (1324 — 1387). Trialogus et supplementum Trialogi ; 

ed. Oxon. 1869. — The twenty-four Articles condemned by the Synod 
of London in 1382. — Compare Lechner, Johann v. Wiclif, Leipz. 
1873 (the Articles, i. p. 669 ff.). 



ixx Political Theories of the Middle Age, 



76, 



Ubertus de Lampugnano. Utrum omnes Christiani subsunt Romano 
Imperio; lecture delivered in 1380; in Zeitschr. fur geschichtliche 
Rechtswissenschaft, 11. 246 — 256. 

77. Henricus de Langenstein dictus de Hassia (1325— 1397). Consilium 

pacis de unione ac reformatione ecclesiae; written, in 1381 ; in 
Job. Gerson, Opera omnia, Antverp. 1706, 11. p. 809 sq. — See also 
O. Hartwig, Henricus de Langenstein dictus de Hassia, Marb. 

1857. 

78. Konrad v. Gelnhausen. Tractatus de congregando concilio tempore 

schismatis, in Martene, Thesaurus anecdot. 11., pp. 1200 — 1226. 

79. Mathaeus de Cracovia (d. 1410). De squaloribus Romanae curiae, 

in Walch, Monumenta medii aevi, I. i, pp. i — 100. — Epistola Univer- 
sitatis Parisiensis ad Regem Francorum d. a. 1394. — Memorandum 
of 1396. — Resolution of the National Synod at Paris of 1398. — 
Speeches and writings of Simon Cramaud, Pierre Plaoul, Aegidius 
de Campis de Rothomago and Pierre du Mont de St Michel; as 
given by Hiibler, die Constanzer Reformation und die Konkordate 
von 1418, Leipz. 1867, p. 360 ff., also in Schwab, Joh. Gerson, 
Wiirzburg, 1858. — Also Consultatio de recusanda obedientia Petro 
de Luna, circ. 1399, in Martene, 1. c. 11. 1189 sq. — Appellatio 
interposita per Leodienses a papa post subtractionem obedientiae 
per eos sibi factam, a. 1400, ib. 1250 sq. — Letter of Simon Cramaud 
d. a, 1400, ib. 1230 sq. 

80. Tractatus de aetatibus ecclesiae ; from the time of the Great Schism ; 

in Goldast, i. 30 sq. 



Century XV, 

81. FrancTscus de Zabarellis. Tractatus de schismate j written circ 1406 ; 

in Schard, pp. 688 — 711. 

82. Conclusiones per stadium Bononiense a, 1409, in Martene, Ampl. 

Collect. VIII. 894. 

83. Octo conclusiones per plures doctores in Ital. part, approb., in 

Gerson, Op. 11. p. no sq. 

84. PetrusdeAlliaco (1350— 1425). Treatises and Speeches in the matter 

of the Schism, in Gerson, Op. i. p. 489 sq. and 11. p. 867 sq., also 
Propositiones, ib. 11. p. 112 j Tractatus de ecclesiastica potestate, 
a. 1416, in V. d. Hardt, Cona Const, vi. 6, p. 15 sq. — See also 
Tschackert, Peter von Ailli, Gotha, 1877. 
85 Johannes Gerson (1363— 1429). Opera omnia, Antverp. 1706.— 
Therein the 'Schismatica' in Tom. 11.; in particular, Protestatio 



List of AMthorities. ixxi 

super statu ecclesiae, p. 2 ; Sententia de modo habendi se tempore 
schismate, p. 3 j De schismate tollendo, p. 76 ; Trilogus in materia 
schismatis, p. 83; Tractatus de unitate ecclesiastica, p. 113; Pro- 
positio, p. 123; Sermones, pp. 131 and 141; De auferibilitate 
Papae ab ecclesia, p. 209 ; De potestate ecclesiae et origine iuris et 
legum (1415), p. 225J Propositio in Cone. Const, p. 271 ; Quomodo 
et an liceat in causis fidei a Papa appellare, p. 303. — Also some few 
matters in Tom. iii. (Opera moralia) and iv. (Opera exegetica et 
miscellanea). — See also J. B. Schwab, Johannes Gerson, Professor 
der Theologie und Kanzler der Universitat Paris, Wiirzburg, 1858. 

86. Johannes Hus (13 73 — 1415). Determinatio de ablatione temporalium 

a clericis, a. 1410; in Goldast, i. 232 sq. — See also Lechner, 
Johann v. Wiclif, vol. 11. 

87. Johannes Breviscoxa. De fide et ecclesia, Romano pontifice et con- 

cilio generali ; in Gerson, Op. 11. p. 805 sq. 

88. Andreas of Randuf. De modis uniendi ac reformandi ecclesiam in 

concilio universalij written circ. 1410; in Gerson, Op. 11. 161 sq. 

89. Theodoricus de Niem. De schismate; written in the reign of Rupert; 

ed. Basil, 1566. — Privilegia et iura imperii circa investituras episco- 
patuum et abbatiarum, written 1410 — 1419; in Schard, pp. 785 — 
859. — De difficultate reformationis ecclesiae; in von der Hardt, 
1. c. 1. 6, p. 255. — De necessitate reformationis ecclesiae, ib. i. 7, 
p. 277. 

90. Nilus archiepiscopus Thessalonicus. De primatu Papae Romani ; 

written in all likelihood about 1438 (not about 1360 as is supposed 
by Riezler and O. Lorenz who have followed in this a mistake 
made by Goldast which he himself corrected in the Diss, de 
autor.); in Goldast, i. 30 — 39. 

91. Nicolaus of Cues (1401 — 1464). Opera omnia, Basil. 1565. The 

treatise De concordantia catholica (to which our references are 
made unless the contrary is stated), written 1431 — 3 and presented 
to the Council of Basel, is found ib. 692 sq. and in Schard, pp. 465 
— 676. — A treatise De auctoritate praesidendi in concilio generali, 
in Diix, Der deutsche Kardinal Nikolaus v. Kusa, Regensb. 1847, 
I., pp. 475 — 491. — See also Stumpf, Die polit. Ideen des Nicolaus 
V. Cues, Koln, 1865 ; Scharpff, Nicolaus v. Cusa als Reformator 
in Kirche, Reich und Philosophie, Tiib. 1871. 

92. Laurentius Valla. De falso credita et ementita Constantini dona- 

tione; written 1439; i" Schard, pp. 734 — 780. 

93. Gregory of Heimburg (d. 1472). Admonitio de iniustis usurpa- 

tionibus paparum Romanorum ; written about 1441 ; in Goldast, i. 
557 — 563. — Controversial writings concerning the affair of Brixen, 



ixxii Political Theories of the Middle Age. 

1460 — 1461, ib. II. 1576 — 1595. — Apologia contra detractiones et 
blasphemias Theodori Laelii, ib. 11. 1604 sq. — Invectiva in 
Nicolaum Cusanum, ib. 1622 — 1631. — See also Clemens Brock- 
haus, Gregory. Heimburg, Leipz. 1861. 

94. Theodoricus Laelius episcopus Feltrensis. Replica pro Pio Papa II. 

et sede Romana; in Goldast, 11. 1595 — 1604. 

95. Aeneas Sylvius Piccolomini (1405 — 1464, from 1458 Pope Pius II.). 

De ortu et auctoritate imperii Romani ; written in 1446 ; in Schard, 
pp. 314—328. — See also Voigt, Enea Silvio de' Piccolomini, 3 vols., 
Berlin, 1856 flf. 

96. Petrus de Monte (1442—1457 Bishop of Brixen). De potestate 

Romani pontificis et generalis concilii s. de primatu. Tract, univ. 
iuris, XIII. I, p. 144 sq. 

97. Johannes a Turrecremata (d. 1468). Summa de ecclesia, Venet. 

1561- — De pontificis maximi conciliique auctoritate, Venet. 1563; 
under the title De potestate papae et concilii generalis tractatus 
notabilis, ed. Friedrich, Oenoponti, 1871. 

98. Antonius de Rosellis (d. 1466). Monarchia s. de potestate ira- 
peratoris et papae; in Goldast, I. 252—556. 

Petrus de Andlo. De imperio Romano-Germanico ; written ini46o ; 
ed. Marquardus Freher, Norimb. 1657. 

100. Franciscus Patricius Senensis Pontifex Cajetanus (d. 1494). De 

institutione reipublicae libri ix.; ed. Arg. 1595.-06 regno et 
regis institutione libri ix.; addressed to King Alphonso of Aragon 
and Calabria; ed. Arg. 1594. 

101. Klagspiegel; ed. Strasb. 1527; appeared at Schwabisch-HaU near 

the beginning of cent, xv., according to Stintzing, Geschichte der 
popularen Litteratur des romisch-kanonischen Rechts in Deutsch- 
land, Leipz. 1867, p. 353 ff., and Geschichte der deutschen 
Rechtswissenschaft, Miinch. u. Leipz., i. p. 43. 

102. Ulrich Tengler. Laienspiegel ; appeared in 1509; ed. Strasb. 1527. 

103. Thomas de Vio Cajetanus (1469-1534)- De auctoritate papae et 

concihi utraque invicem comparata ; written in 1511; in his 
Opuscula omnia, Antv. 1612, i. i. 
Jacobus Almainus (d. 15 15). Expositio circa decisiones Magistri 
G. Occam super potestate summi Pontificis ; written in 1512; in 
Gerson, Op. ii., p. 1013 sq. and (as Expositio de suprema 
potestate ecclesiastica et laica) in Goldast, i. 588—647.-06 
dominio naturali civili et ecclesiastico ; in Gerson, Op. 11., p. 
961 sq.-De auctoritate Ecclesiae et Conciliorum generaUum, adv. 
Thomam de Vio Cajetanum; ib. 1013 sq. 



99. 



104 



List of Authorities. ixxiii 



II. Legists'. 

105. Glossa Ordinaria, compiled by Accursius (1182 — 1258): in the 

edition of the Corpus luris Civilis, Venetiis apud Juntas 1606, 
compared with earUer editions. [Irnerius (circ. iioo) is the 
founder of the school; Bulgarus, Martinus, Jacobus, Hugo are 
' the four doctors.'] 

106. Placentinus (d. 1192). De varietate actionum (before 1180), Mog. 

1530- 

107. Jacobus de Arena (last mentioned in 1296). Commentarii in uni- 

versum ius civile, ed. Lugd. 1541. 

108. Andreas de Isernia (Neapolitan, b. circ. 1220, d. 13 16). Super 

usibus feudorum, ed. Lugd. 1561. 

109. Oldradus de Ponte (de Laude) (first mentioned 1302, d. 1335). 

Consilia, ed. Francof. 1576. 

110. Jacobus Buttrigarius (b. circ. 1274, d. 1348). Lectura in Digestum 

Vetus, ed. Romae, 1606. 

111. Cinus (Guittoncino Sinibaldi) (b. 1270, d. 1336). Lectura super 

Codicem, ed. Francof. 1578. — Lectura super Digestum Vetus, in 
eadem editione. 

112. Albericus de Rosciate (d. 1354). Commentarii, ed. Lugd. 1545. — 

Dictionarium, ed. Venet. 1573. 

113. Bartolus de Sassoferrato (b. 1314, d. 1357). Commentarii — Con- 

silia — Quaestiones — Tractatus. All from the edition of his works, 
Basil. 1562. 

114. Baldus de Ubaldis (1327 — 1400). Commentarii on the various parts 

of the Corpus Juris, ed. Venet. 1572 — 3. — Commentarius in usus 
feudorum, written in 1391, ed. Lugd. 1566. — Commentariolum 
super pace Constantiae, in eadem editione. — Consilia, ed. Venet. 

1575- 

115. Bartholomaeus de Saliceto (d. 1412). Commentarius super Codice ; 

finished in 1400; ed. Venet. 1503. 

116. Christoforus de Castellione (1345 — 1425). Consilia, ed. Venet. 

1560. 

117. Raphael Fulgosius (1367 — 1427). Consilia posthuma, Ambergae, 

1607. 

' On pp. 186, 238, 351 and 416 Dr Gierke gives long lists of legists and canonists. 
We here select only such writers as are referred to in the chapter that is here translated. 



ixxiv Political Theories of the Middle Age. 

118. Johannes de Imola (d. 1436). Commentarius on the Infortiatum 

and Digestum Novum, ed. Lugd. 1549. 

119. Ludovicus de Ponte Romanus (1409 — 1439). Commentarii, ed. 

Francof. 1577. — Consilia, ed. Lugd. 1548. 

120. Paulas de Castro, Castrensis (d. 1441). Commentarii on Digests 

and Code, ed. Lugd. 1585. 

121. Johannes Christophorus Parcus (Portius, Porcius) (from 1434 pro- 

fessor at Pavia). Commentarius in Institutiones, ed. Basil 
1548. 

122. Tartagnus, Alexander de Imola de Tartagnis (1424 or 1423— 1477). 

Commentarii on the three Digests and the Code, ed. Francof. 
1 6 10.— Consilia, ed. Aug. Taur. 1575 (with additions by Marcus 
Antonius and Natta). 

123. Johannes de Platea (of Bologna, cent. xv.). Super Institutionibus, 

ed. Lugd. 1539.— Super tribus ultimis libris Codicis, ed. Lued' 
1528. ^ • 

124. Paris de Puteo (1413— 1493). Tractatus de Syndicatu, ed. FrancoC 

1608 (also in Tr. U. J. vii. 127). 

125. Johannes Bertachinus (d. 1497). Repertorium iuris, Lugd. 1521 

126. Jason de Mayno (1435-1519)- Commentarii on the three Digests 

and the Code, ed. Aug. Taur. 1576.— Consilia, ed. Francof 1611 

127. Paulus Picus a Monte Pico (pupil of Jason, professor at Pavia, end 

of cent. XV.). Opera, ed. Francof. 1575. 

128. Johannes Crottus (of Casale, professor at Bologna, Pavia and Pisa, 
circ. 1500). Consilia, ed. Venet. 1576. 

Franciscus Marcus (member of the Pariement of Dauphin^). De- 
cisiones Delphinenses, ed. Francof. 1624. 

130. Franciscus Curtius junior (d. 1533). Consilia, ed Spirae, 1604. 

131. Phihppus Decius (1454-1536 or 1537). Commentarii in Digestum 

vetus et Codicem, ed. Lugd. 1559.— De reguUs iuris, ed. Col. 
1584. — Consilia, ed. Venet. 1570. 

132. Martinus de Caratis Laudensis. Lectura super feudis, ed. Basil 

1564. -De fisco, Tr. U. J. xn. 2._De represaliis, ib. xii. 279. 



129 



133 



III. Canonists. 



Glossa Ordinaria on the Decretum Gratiani : compiled by Johannes 
Teutonicus (d. about 1220): editions used Lugd. i^ia and 
Argent, p. Henr. Eggesteyn, 1471. ^ 

131 Innocentius IV.. Sinibaldus Fliscus (d. 1254). Apparatus (Com- 



List of Authorities. ixxv 



mentaria) in libros quinque decretalium, ed, Francof. 1570: 
finished soon after the Council of Lyons (1245). 

135. Bernardus Compostellanus iunior. Lectura on the Decretals (i 245 — 

1260, unfinished), ed. Paris, 15 16. 

136. Hostiensis, Henricus de Segusia Cardinalis Ostiensis (d. 1 2 7 1 ). Summa 

aurea super titulis decretalium, ed. Basil. 1573 ; written after 1250. 

137. Glossa ordinaria on the Liber Extra, compiled by Bernhardus 

Parmensis de Botone (d. 1263); finished shortly before his death; 
ed. Lugd. 1509 and Basil. 1482. 

138. Guilelmus Durantis, 'Speculator' (1237 — 1296). Speculum iudiciale; 

first finished in 1272, revised before 1287; ed, Basil. 1574 and 
Francof. 16 12. 

139. Glossa ordinaria on the Liber Sextus (1304 or 1305) and the 

Clementines (1326) by Johannes Andreae. 

140. Johannes Andreae Mugellanus (1270 — 1348). Novella in Decretales 

Gregorii IX.; in i. et 11. libr. ed. Venet. 161 2; super iii. Hbr. ed. 
Venet. 1505 ; super iv. et v. libr. ed. Venet. 1505. 

141. Idem. Novella super Sexto, ed. Lugd. 1527; written between 1334 

and 1342. 

142. Henricus Bouhic (Bohic) (b. 1310, d. after 1350). Distinctiones in 

libros quinque Decretalium, Lugd. 1520; written 1348. 

143. Baldus de Ubaldis (1327 — 1400). Commentarius super tribus prior- 

ibus libris decretalium, Lugd. 1585. 

144. Petrus de Ancharano (1330 — 1416). Lectura super sexto decretalium 

libro, Lugd. 1543. 

145. Franciscus de Zabarellis Cardinalis (1335 — 1417). Commentaria in 

V. libros decretalium, Venet. 1602. — Lectura super Clementinis, 
Venet. 1497; written between 1391 and 1410. — Consilia, Venet. 
1581. 

146. Antonius de Butrio (1338 — 1408). Commentaria in v, libros decre- 

talium, Venet. 1578. — Consilia, Lugd. 1541. 

147. Dominicus de Sancto Geminiano (first half of cent. xv.). Lectura 

super decreto, Venet. 1504. — Lectura super libro sexto, Lugd. 
1535. — Consilia et Responsa, Venet. 1581. 

148. Johannes ab Imola (d. 1436). Commentarius super Clementinis, 

Lugd. 1551. 

149. Prosdocimus de Comitibus (d. 1438). De difierentiis legum et 

canonum, Tr. U. J. i. 190. 

150. Panormitanus, Nicholaus de Tudeschis (Abbas Siculus, Abbas 

modernus) (d. 1453). Commentaria, Venet. 1605 (vols. i. — vii.). — 
Consilia et Quaestiones, in eadem ed. vol. viii. ; the Quaestiones 
also in Selectae Quaestiones, Col. 1570, p. 303. 



ixxvi Political Theories of the Middle Age. 

151. Johannes de Anania (d. 1457). Commentarius super Decretalibus 

and super Sexto Decretalium, Lugd. 1553. 

152. Alexander Tartagnus ab Imola (1424 — 1477). Consilia, ed. Francof. 

1610. 

153. Cardinalis Alexandrinus, Johannes Antonius de S. Gregorio (d. 

1509). Commentaria super Decreto, Venet. 1500; written between 
1483 and 1493. 

154. Philippus Franchus de Franchis (d. 147 1). Lectura in Sextum 

Decretalium, Lugd. 1537. 
' 155. Dominicus Jacobatius Cardinalis (d. 1527). Tractatus de concilio, in 
Tr. U. J. XIII. I, pp. 190 — 398. 

156. Hieronymus Zanettinus (d. 1493). Contrarietates seu diversitates 

inter ius civile et canonicum, in Tr. U. J. i. p. 197. 

157. Benedictus Capra (d. i47o). Regulae et Tractatus, Venet. 1568.— 

Consilia, Lugd. 1556. 

158. Ludovicus Bologninus (1447—1508). Consilia: along with those of 

Benedictus Capra, Lugd. 1556. 

159. Felinus Sandaeus (1444— 1503). Opera, Lugd. 1540 (Lectura in 

decretales), 

160. Philippus Decius (1454—1536 or 1537). Super DecretaUbus, Lugd. 

1551- 



IV. Modern Books. 

161. Forster, Quid de reipublicae vi ac natura medio aevo doctum sit, 

Vratisl. 1847. 

162. Forster, Die Staatslehre des Mittelalters, AUg. Monatschr. fiir Wiss. 

u. Litt. 1853, pp. 832 ff. and 922 ffi 

163. Friedberg, Die mittelalterlichen Lehren iiber das Verhaltniss von 

Kirche und Staat, Zeitschr. fiir Kirchenrecht, vol. 8, p. 69 ff. 

164. Friedberg, Die Grenzen zwischen Staat und Kirche, Tiibingen, 

1872. 

165. Friedberg, Die mittelalterlichen Lehren uber das Verhaltniss von 

Staat und Kirche, Leipz. 1874. 

166. Holler, Kaiserthum und Papstthum, Prag, 1862. 

167. Dollinger, Die Papstfabeln des Mittelalters, Miinchen, 1863. 

168. Hiibler, Die Constanzer Reformation und die Konkordate von 

1418, Leipz. 1867. 

169. Schulte, Die Stellung der Koncilien, Papste und Bischofe vom 

histonschen und kanonischen Standpunkte, 187 1. 



List of Authorities. ixxvii 

170. Hergenrother, Katholische Kirche und christlicher Staat, Freiburg 

i. B. 1872. 

171. S. Riezler, Die literarischen Widersacher der Papste zur Zeit Ludwigs 

des Baiers, Leipz. 1874. 

172. F. V. Bezold, Die Lehre von der Volkssouveranetat wahrend des 

Mittelalters, Hist. Zeitschr. vol. 36 (1876), p. 340 ff. 

173. W. Molitor, Die Dekretale Per Venerabilem von Innocenz III. und 

ihre Stellung im ofFentlichen Recht der Kirche, Miinster, 1876. 

174. O. Lorenz, Deutschlands Geschichtsquellen im Mittelalter seit der 

Mitte des dreizehnten Jahrhunderts, ed. 2, Berl. 1876, 11. p. 288 ff. 

175. W. V. Giesebrecht, Geschichte der deutschen Kaiserzeit, vol. iii. 

176. Raumer, Geschichte der Hohenstauffen und ihrer Zeit, vol. vi. 

177. Wessenberg, Die grossen Kirchenversammlungen des 15 u. 16 

Jahrh., Konstanz, 1845 ff. 

178. Hefele, Konciliengeschichte, vols. i. — iv. in ed. z. 

179. Ficker, Forschungen zur Reichs- u. Rechtsgeschichte Italiens, Inns- 

bruck, 1868— 1874. 



INDEX TO LIST OF AUTHORITIES'. 



Accursius No. loj 

Aegidius Romanus No. 43 

Aeneas Sylvius No. 95 

Ailly No. 84 

Alexander III No. 27 

Alexander Halensis No. 38 

Alexandrinus No. 153 

AUiaco No. 84 

Almainus No. 104 

Alvarius No. 63 

Anania No. 151 

Ancharano No. 144 

Andlo No. 99 

Andreae No. 140, 141 

Anselmus No. 12 

Aquinas No. 39 

Arena No. 107 

Augustinus Triumphus No. 58 

Augustodunensis No. 17 

Baldus Nos. 114, 143 
Bartolus No. 113 
Bebenburg No. 68 
Becket No. 21 
Bellovacensis No. 40 
Bernard, St. No. 19. 
Bertachinus No. 125 
Bertrand No. 60 
Blesensis Nos. 28, 29 
Boehmer No. 23 
Bologninus No. 158 
Boniface VIII No. 47 



Bouhic No. 142 

Breviscoxa No. 87 

Briinner Schoffenbuch No. 71 

Buch No. 70 

Bulgarus No. 105 

Butrio No. 146 

Buttrigarius No. no 

Caietanus No. 103 
Cantuariensis, Thom. Na 21 
Capra No. 157 
Carnotensis No. 13 
Castellione No. 116 
Castrensis No. 120 
Castro No. 120 
Cesena No. 62 
Chartres No. 13 
Cinus No. Ill 
Colonna, Aegid. No. 43 
Colonna, Landulf. No. 54 
Comitibus No. 149 
Compostellanus No. 135 
Cracovia No. 79 
Crassus No. 4 
Crottus No. 128 
Curtius No. 130 
Cues No. 91 
Cusa No. 91 
Cusanus No. 91 

Damiani No. i 
Dante No. 46 



' This Index may help a reader to pass from Dr Gierke's notes to the above list of 
Authorities. 



Index to List of Authorities. 



Ixxix 



Decius Nos. 131, 160 

Deusdedit No. 10 

Disputatio inter militem et clericum 

No. 50 
Durantis sen. No. 138 
Durantis jun. No. 53 
Dux No. 91 

Eike No. 34 
Engelbert No. 44 

Felinus No. 159 
Ficker Nos. 4, 64, 179 
Fleury No. 16 
Floriacensis No. 16 
Franchus No. 154 
Frederick II No. 32 
Frisingensis No. 26 
Fulgosius No. 117 

Gelnhausen No. 78 
Gemblacensis No. 14 
Geminiano No. 147 
Gerhoh No. 20 
Gerson Nos. 77, 85 
Goffredus No. 11 
Goldast No. 19 
Gregory VII No. 2 

Halensis No. 38 
Hardt No. 84 
Hartwig No. 77 
Hefele No. 178 
Heimburg No. 93 
Hergenrother No. 170 
Hofler Nos. 35, 69, 166 
Honorius No. 17 
Hostiensis No. 136 
Hubler Nos. 79, 168 
Huillard-BrdhoUes No. 32 
Hus No. 86 

Imola Nos. 118, 148 
Innocent III No. 30 
Innocent IV Nos. n, 134 
Isernia No. 108 



Ivo No. 13 

Jacobatius No. 155 

JafK Nos. 2, 24 

Jason No. 126 

Joh. Andreae Nos. 140, 141 

Job. Parisiensis No. 49 

Joh. Saresberiensis No. 22 

Klagspiegel No. loi 

Laelius No. 94 
Lampugnano No. 76 
Landulfus No. 54 
Langenstein No. 77 
Laudensis No. 132 
Lautenbach No. 6 
Lechner No. 75 
Lucca No. 45 
Lupoldus No. 68 

Mai No. 10 
Manegold No. 6 
Marcus No. 129 
Marsilius No. 57 
Martene No. 5 
Martinus No. 105 
Megenberg No. 69 
Migne No. i 
Minorita No. 65 
Molitor No. 173 
Mont de St Michel No. 79 
Monte No. 96 

Naumburgensis No. 8 
Nicolaus Minorita No. 65 
Niem No. 89 
Nilus No. 90 

Ockham No. 61 
Oldradus No. 109 
Osnabruck No. 42 

Paludanus No. 59 
Panormitanus No. 150 
Parcus No. 121 



ixxx Political Theories of the Middle Age. 



Parisiensis No. 49 
Patavinus No. 57 
Patricius Senensis No. 100 
Pelagius No. 63 
Petrarca No. 72 
Petrus Bertrand No. 60 
Petrus Blesensis Nos. 28, 29 
Petrus Crassus No. 4 
Petrus Damiani No. i 
Petrus de AUiaco No. 84 
Petrus de Monte No. 96 
Petrus de Vineis No. 33 
Petrus Paludanus No. 59 
Picus No. 127 
Pius II No. 95 
Placentinus No. 106 
Platea No. 123 
Ponte Nos. 109, 119 
Prosdocimus No. 149 
Ptolomaeus No. 45 
Puteo No. 124 

Quaestio in utramque partem No. 73 

Randuf No. 88 
Raynald No. 36 
Reicherspergensis No. 20 
Repgow No. 34 
Romanus, Aegidius No. 43 
Rosciate No. 112 
Rosellis No. 98 

Sachsenspiegel No. 34 
Saliceto No. 115 
Salisbury No. 22 
Sandaeus No. 159 
Sarisberiensis No. 22 
Schard No. 8 
Schulte No. 169 
Schwab Nos. 79, 85 
Schwabenspiegel No. 41 



Senensis No. 100 
Siena No. 100 
Sigebertus No. 14 
Somnium Viridarii No. 74 
Speculator No. 138 
Stablo No. 24 
Sudendorf No. 4 
Sylvius, Aeneas No. 95 

Tartagnus Nos. 122, IJ2 
Tengler No. 102 
Teutonicus No. 133 
Thessalonicus No. 90 
Thomas Aquinas No. 39 
Thomas Cantuariensis No. 21 
Torquemada No. 97 
Tr. U. J. [tractatus universi iuris] 

No. 53 
Trier No. 5. 
Triumphus No. 58 
Turrecremata No. 97 

Ubertus No. 76 

Valla No. 92 
Victore, Sancto No. 18 
Vincentius No. 40 
Vindocinensis No. 11 
Vineis No. ■^■^ 
Viridarii Somnium No. 74 
Volkersdorf No. 44 

Walramus No. 8 
Wenrich No. 5 
Wessenberg No. 177 
Wibald No. 24 
Wido No. 7 
Wyclif No. 75 

Zabarella Nos. 81, 145 
Zanettinus No. 156 



POLITICAL THEORIES OF THE 
MIDDLE AGE. 



I. The Evolution of Political Theory. 

The development by Legists and Canonists of a The 
Theory of Corporations came into contact at many ofPoUtkai 
points with the efforts of the Medieval Spirit rationally ''"^^°'^' 
to comprehend Church and State in their entirety, and 
therefore scientifically to conceive the nature of all 
Human Society. For the first beginnings of this 
movement we may look as far back as the great 
Quarrel over the Right of Investiture, but not until 
the thirteenth century did it issue in a definite Theory 
of Public Law. From that time onwards the doctrines 
of the Publicists, doctrines which were being steadily 
elaborated and unfolded, became no mere doctrines 
of Public Law, but were also the exponents of an 
independent Philosophy of State and Law such as 
had not previously existed. And just because this was 
so, they introduced a quite new force into the history 
of legal ideas. 

This result was due to the co-operation of various Co-opera- 
sciences. Theology and Scholastic Philosophy, Political various 
History and practical arguments touching the questions 
of the day, here encountered both each other and 



Political Theories of the Middle Age. 



professional Jurisprudence in one and the same field. 

Their starting-points, their goals, their equipments 

might be different; still here as elsewhere Medieval 

Science preserved a high degree of unity and generality. 

I n the first place, though a war of opinions over the great 

questions of Public Law might be loudly raging, still 

all men shared one common concept of the Universe, 

the supreme premisses being regarded by medieval 

/ minds as no discoveries to be mad e by man^ J)ut as 

_ the divinely revealed substra tum of all human sciencg, 

~ Secondly, men readily borrowed" on all sides whatever 

they needed, so that there was an always increasing 

store of intellectual treasure amassed by co-operative 

labour and common to all. 

Diversity In this manner elements that derived from the 

of mate- , . , . 

rials. most diverse sources were fused mto a system. Holy 
Writ and the expositions thereof, Patristic Lore and 
more especially the Civitas Dei of Augustine, these 
furnished the medieval Doctrine of Society with its 
specifically Christian traits. Genuinely Germanic ideas 
flowed into it from the tales of medieval historians and 
from the popular thought which those tales had in- 
fluenced. The resuscitation of the Political Philosophy 
of the Antique World, and above all the exaltation of 
the Politics of Aristotle to the position of an irrefragable 
canon, had from the first dictated at least the scientific 
form of the whole doctrine. And then to all that was 
obtained from these various sources Jurisprudence 
added the enormous mass of legal matter that was 
enshrined in Roman and Canon Law, and, to a smaller 
degree, in the ordinances of the medieval Emperors, 
for Jurisprudence regarded what these texts had to say 
of Church and State, as being not merely the positive 
statutes of some one age, but rules of eternal validity 
flowing from the very nature of things. 



The Course of Development. 



Then again, in the method of handUng this wealth Diverse 
of material the tendencies of the different sciences 
supplemented each other. The deepest speculative 
penetration falls to the share of the theologian and 
philosopher; the keenest practical appreciation of 
newly-won ideas falls to the share of politicians with 
an eye on the question of the hour ; still Jurisprudence, 
albeit with some hesitation, yielded to the impulses 
that were thus given. Conversely, it was professional 
Jurisprudence which by its assiduously detailed work 
brought the aerial scheme of thought into combination 
with the actual public life of great and small societies, 
and by so doing both started a science of Positive 
Public Law^ and provided the philosopher and the 
speculative politician with a series of legal concepts 
serviceable for the construction of a' system. More- 
over, at this point the other writers adhered as closely 
as was possible to the Legists, Canonists, and Feudists, 
and by so doing began to give to their abstractions and 
their postulates a stable formulated shape and a more 
solid basis among realities. 

Thus, notwithstanding the diversity of its sources V°''y °^ 

, . the move. 

and its confluents, the Medieval Doctrine of State and ment. 
Society flowed along one single bed. Within that bed 
were commotions that shook the world. But all this 
conflict between opinions, ecclesiastical and secular, 
absolutistic and democratic, only accelerated the speed 
of a current which as a whole swept onwards in but 
one direction. 

Beneath this movement, however, there was an Medieval 
internal contest, which in the history of ideas was of Antique- 
more importance than all the external differences be- Thought. 
tween partizans : namely, the contest between Properly 
Medieval and ' Antique-Modern ' Thought. 

Throughout the Middle Age and even for a while ^^^^^^ 



4 Political Theories of the Middle Age. 



longer, the outward framework of all Political Doc- 
trine consisted of the grandiose but narrow system of 
thoughts that had been reared by the Medieval Spirit, 
It was a system of thoughts which culminated in the 
f idea of a Community which God Himself had con- 
, stituted and which comprised All Mankind. This 
system may be expounded, as it is by Dante, in all its 
purity and all its fulness, or it may become the shadow 
of a shade ; but rudely to burst its bars asunder is an 
exploit which is but now and again attempted by some 
bold innovator. 
Antique- None the less, this Political Doctrine, even when 

Thought, it was endeavouring contentedly to live within the 
world of medieval thoughts, had from the first borne 
into that world the seeds of dissolution. To the cradle 
of Political Theory the Ancient World brought gifts : 
an antique concept of The State, an antique concept 
of Law. Of necessity these would work a work of 
destruction upon the medieval mode of thought. As 
a matter of fact the old system began internally to 
dissolve. The several elements that were thus set 
free began to combine with the antique ideas, and from 
these combinations new mental products issued. So 
much of Medieval Thought as was in this wise com- 
pletely fused with the Antique Tradition came down 
with that Tradition into the Modern World, and be- 
came the specifically modern factor in the scheme of 
Natural Law. All the more irreparable was the down- 
fall of the Medieval System. 
Advance If from the point at which we have placed our- 

tique"" selves we survey the Political Doctrine of the Middle 
Thou^t. ^%^' "^^ ^^^ within the medieval husk an 'antique- 
modern' kernel. Always waxing, it draws away all 
vital nutriment from the shell, and in the end that shell 
lis broken. Thus the history of the Political Theories 



The Course of Development. 



of the Middle Age is at one and the same time a 
history of the theoretical formulation of the System of 
Medieval Society and the history of the erection of 
that newer edifice which was built upon a foundation 
of Natural Law. As might be expected, we may see 
great differences between the different writers and 
manifold fluctuations. Still, if we look at the whole 
movement, there is a steady advance all along the 
line. We may say that the first forces to tread the ■ | 
road that leads away from the Middle Age are the 
champions of Papal Absolutism, though to a first glance v 
they seem so genuinely medieval. Then the study of 
Roman Law and the arguments for Imperial Abso- 
lutism with which it supplies the Hohenstaufen really I 
march in the same direction. New forces were mar- / 
shalled by the scholastic students of the Aristotelian 
Philosophy, and even Thomas of Aquino uncon-t^ 
sciously laboured in a work of destruction and inno- 
vation. A new and powerful impulse was given by 
the literary strife that broke forth in France and 
GeVmany when the fourteenth century was young: 
strife over the relation between Church and State, in 
the course whereof many of the ideas of the Reforma- 
tion, and even many of the ideas of the French Re- ■^ 
volution were proclaimed, though in scholastic garb, 
by such men as Marsilins of Parlna and William of "^ 
Ockham. Then along very various routes the writers 
of the Conciliar Age forwarded, whether they liked it 
or no, the victorious advance of the Antique-Modern 
forces. Finally in the fifteenth century Humanism 
broke with even the forms of the Middle Age and, in 
its desire to restore the purely classical, seemed for a 
while to be threatening those medieval elements with- 
out the retention of which the Modern World could 
not have been what it is. The drift towards Antiquity 



6 Political Theories of the Middle Age. 



pure and undefiled, whether it takes with Aeneas 
Sylvius the turn to absolutism or with Patricius of 
Siena the turn to republicanism, did as a matter of 
fact wholly repulse for a season the Germanic notions 
of State and Law. Yet was the medieval tradition 
held by the many, and on the other hand the thoughts 
of the German Reformation were being prepared. 
Revolutionary thoughts they were, but harmonious in 
their innermost characteristics with the work of the 
Germanic Spirit. Isolated, it is true, and in the shape 
that he gave it fruitless, appears the effort of Nicholas 
of Cues. The genius of his powerful mind endeavoured 
to unify two ages, and, as it were, to bring to a new 
birth and to modern vigour the medieval system of 
ideas. But fundamental Germanic thoughts which lay 
in that system lived on, doing a mighty work both 
among the political ideas of the Reformation and also 
in the construction of the ' nature-rightly ' Doctrine of 
the State. 
Influence As to the relation between the development of 
poration Political Theory and that Doctrine of Corporations 
PoiTticai"" upon which Legists and Decretists had laboured, we 
Theory, g^all see that it was just this lore of Corporations 
which furnished Political Theory with genuinely legal 
elements. Not only were the Jurists themselves 
acquiring a Theory of Church and State which, at 
least in part, was obtained by a direct application of 
the ideas and rules of Corporation Law to the largest 
and highest Communities, but the Philosophers and 
Speculative Politicians, though they might hold that 
a mere corporation was unworthy of their attention, 
borrowed from this quarter a wealth of ideas and rules 
that could be employed in the scientific construction of 
Church and State. 

Conversely, Political Theory necessarily reacted 



Macrocosm and Microcosm. 



upon the Doctrine of Corporations. For one thinof, influence 

,1 r , r 1 °' of Political 

the latter was irom the very first, and as a matter of Theory 
course called upon to represent the fundamental thought corpora- 
of the world-embracing Medieval Spirit touching the "°" ^**' 
highest and widest of all Communities. And, on the 
other hand, every advance of the ' antique-modern ' 
idea of The State was a preparation for the negative 
and destructive influence which modern modes of 
thought have brought to bear upon the medieval lore 
of corporations. 

Having thus indicated the main tendencies and 
combinations that will deserve our attention, we may 
now more closely examine those leading thoughts 
which find a theoretical formulation in the Political 



Doctrine of the Middle Age. 



II. Macrocosm and Microcosm. 

Political Thought when it is genuinely medieval Medierai 
starts from the Whole, but ascribes an intrinsic value and the 
to every Partial Whole down to and including the ^ 
Individual. If it holds out one hand to Antique | 
Thought when it sets the Whole before the Parts, 
and the other hand to the Modern Theories of Natural 
Law when it proclaims the intrinsic and aboriginal ^ 
rights of the Individual, its peculiar characteristic is/ 
that it sees the Universe as one articulated Whole >/ 
and every Being — whether a Joint-Being (Community) 
or a Single-Being — as both a Part and a Whole : a 
Part determined by the final cause of the Universe, 
and a Whole with a final cause of its own. | 

This is the origin of those theocratic and spiritual- The idea 

*.-0i iheo- 

istic traits which are manifested by the Medieval cracy. 
Doctrine of Society. On the one side, every ordering 
of a human community must appear as a component ^ 



8 Political Theories of the Middle Age. 

part of that ordering of the world which exists because 
God exists, and every earthly group must appear as an 
organic member of that Civitas Dei, that God-State, 
which comprehends the heavens and the earth. Then, 
- on the other hand, the eternal and other-worldly aim 
and object of every individual man must, in a directer 
or an indirecter fashion, determine the aim and object 
of every group into which he enters. 
DWine ^"^ ^^ ^&r& must of necessity be connexion be- 

Harmony. tween the various groups, and as all of them must be 
connected with the divinely ordered Universe, we come 
7 by the further notion of a divinely instituted Harmony 
which pervades the Universal Whole and every part 
thereof. To every Being is assigned its place in that 
Whole, and to every link between Beings corresponds 
a divine decree. But since the World is One Organism, 
animated by One Spirit, fashioned by One Ordinance, 
the self-same principles that appear in the structure of 
the Worid will appear once more in the structure of its 
every Part. Therefore every particular Being, in so 
far as it is a Whole, is a diminished copy of the 
World; it is a Microcosmus or Minor Mundus in 
which the Macrocosmus is mirrored. In the fullest 
measure this is true of every human individual ; but it 
holds good also of every human community and of 
human society in general. Thus the Theory of Human 
Society must accept the divinely created organization 
of the Universe as a prototype of the first principles 
which govern the construction of human communities'. 



Unity in Church and State. 9 



III. Unity in Church and State. 
Now the Constitutive Principle of the Universe is '^^ P'™- 

, ciple of 

in the first place Unity. God, the absolutely One, is Unity. 
before and above all the World's Plurality, and is the 
one source and one goal of every Being. Divine 
Reason as an Ordinance for the Universe {lex aeterna) 
permeates all apparent plurality. Divine Will is ever 
and always active in the uniform government of the 
World, and is directing all that is manifold to one 
only end. 

Therefore wherever there is to be a Particular or The Unity 
Partial Whole with some separate aim and object kind, 
subordinated to the aim and object of the Universe, 
the Principle of Unity {principium unitatis) must once ' 
more hold good. Everywhere the One comes before 
the Many. All Manyness has its origin in Oneness^. 1 
{omnis multitudo derivatur ab uno) and to Oneness it 
returns {ad unum reducitur). Therefore all Order 
consists in the subordination of Plurality to Unity 
{ordinatio ad unum), and never and nowhere can a 
purpose that is common to Many be effectual unless 
the One rules over the Many and directs the Many to 
the goal. So is it among the heavenly spheres ; so in 
the harmony of the heavenly bodies, which find their 
Unity in the primum mobile. So is it in every living 
organism. Here the Soul is the aboriginal principle, 
while Reason among the powers of the Soul and the 
Heart among the bodily organs are the representatives 
of Unity. So is it in the Whole of inanimate nature, 
for there we shall find no compound substance in 
which there is not some one element which determines 
the nature of the Whole. Not otherwise can it be in 
the Social Order of Mankind*. Here also every , 



[o Political Theories of the Middle Age. 



Plurality which has a common aim and object must in 
relation to that aim and object find source and norm 
and goal in a ruling Unity, while, on the other hand, 
every of those Parts which constitute the Whole, must, 
in so far as that Part itself is a Whole with a final 
cause of its own, itself appear as a self-determining 
Unit*. Unity is the root of All, and therefore of 
all social existence'. 
Mankind Then in the Middle Age these thoughts at once 
Com-^ issue in the postulate of an External, Visible Com- 
'"""''''• munity comprehending All Mankind. In the Universal 
Whole, Mankind is one Partial Whole with a final 
cause of its own, which is distinct from the final causes 
of Individuals and from those of other Communities'. 
, Therefore in all centuries of the Middle Age Christen- 
dom, which in destiny is identical with Mankind, is set 
before us as a single, universal Community, founded 
and governed by God Himself. Mankind is one 
' mystical body ' ; it is one single and internally con- 
nected ' people ' or ' folk ' ; it is an all embracing 
corporation (universitas), which constitutes that Uni- 
versal Realm, spiritual and temporal, which may be 
called the Universal Church {ecclesia universalis), or, 
with equal propriety, the Commonwealth of the Human 
Race {I'espublica generis htimani). Therefore that it 
may attain its one purpose, it needs One Law {lex) 
and One Government {unicus pHncipatus)^ . 
Separation Then however, along with this idea of a single 
and State. Community comprehensive of Mankind, the severance 
of this Community between two organized Orders of 

ILife, the spiritual and the temporal, is accepted by the 
Middle Age as an eternal counsel of God. In century 
after century an unchangeable decree of Divine Law 
I seems to have commanded that, corresponding to the 
^ doubleness of man's nature and destiny, there must be 



Unity in Church and State. ii 

two separate Orders, one of which should fulfil man's 
temporal and worldly destiny, while the other should 
make preparation here on earth for the eternal here- 
after. And each of these Orders necessarily appears 
as an externally separated Realm, dominated by its 
own particular Law, specially represented by a single 
Folk or People and governed by a single Govern- 
ment'. 

The conflict between this Duplicity and the requisite Duality of 
Unity becomes the starting-point for speculative dis- and state 
cussions of the relation between Church and State, to Unity! 
The Medieval Spirit steadily refuses to accept the 
Dualism as final, l^n some higher Unity reconciliation 
must be found. This was indubitable ; but over the 
nature of the reconciling process the great parties of y- 
the Middle Age fell a-fighting. 

The ecclesiastical party found a solution of the The High 
problem in the Sovereignty of the Spiritual Power. Theory: 
Always more plainly the Principle of Unity begins to ty°of rtil" 
appear as the philosophical groundwork of that theory ^^""^ ' 
which, from the days of Gregory VII onwards, was 
demanding — now with more and now with less rigour 
— that all political arrangements should be regarded as 
part and parcel of the ecclesiastical organization. The 
'argumentum unitatis' becomes the key-stone of all 
those other arguments, biblical, historical, legal, which 
support the papal power over temporal affairs'. If 
Mankind be only one, and if there can be but one I 
State that comprises all Mankind, that State can be \ 
no other than the Church that God Himself has 
founded, and all temporal lordship can be valid only 
in so far as it is part and parcel of the Church. 
Therefore the Church, being the one true State, has 
received by a mandate from God the plenitude of all 
spiritual and temporal powers, they being integral parts 



12 Political Theories of the Middle Age. 



7 



of One Might". The Head of this all-embracing State 
is Christ. But, as the Unity of Mankind is to be 
realized already in this world, His celestial kingship 
must have a terrestrial presentment". As Christ's 
Vice- Regent, the earthly Head of the Church is the 
one and only Head of all Mankind. The Pope is the 
wielder of what is in principle an Empire {principatus) 
over the Community of Mortals. He_isJtheir Priest 
and their King ; their spiritual andjemporalJlQnareh ; 
_ their Law-giver jandJiiEgeJn^Lcauses sup 
The If the papal party none the less held fast the 

temporal doctriue that a separation of Ecclesiastical and Tem- 
^°^^'* poral Powers was commanded by God, it explained 
that the principle of separation was applicable merely 
to the mode in which those powers were to be exer- 
cised". The bearer of the supl^me plenitude of power 
in Christendom is forbidden by divine law to wield the 
temporal sword with his own hand. Only the worthier 
portion of Ecclesiastical Might is reserved for the 
Priesthood, while the worldly portion is committed to 
less worthy hands". It must be confessed therefore 
that God has willed the separation of the Regnum 
from the Sacerdotium, and therefore has willed the 
existence of the Secular State : the worldly magistrature 
is ordained of God". Still it is only by the mediation 
of the Church that the Temporal Power possesses a 
divine sanction and mandate. The State in its con- 
crete form is of earthly and not, like the Church, of 
heavenly origin. In so far as the State existed before 
the Church and exists outside the Church, it is the 
outcome of a human nature that was impaired by the 
Fall of Man. It was founded, under divine sufferance, 
by some act of violence, or else was extorted from God 
j for some sinful purpose. Of itself it has no power to 
<^. raise itself above the insufficiency of a piece of human 



Unity in Church and State. 13 

handiwork"'. In order therefore to purge away the 
stain of its origin and to acquire the divine sanction as 
a legitimate part of that Human Society which God 
has willed, the State needs to be hallowed by the 
authority of the Church. In this sense therefore it is 
from the Church that the Temporal Power receives its ! 
true being, and it is from the Church that Kaiser and ' 
Kings receive their right to rule". And all along the 
Temporal Government when it has been constituted ; 
remains a subservient part of the Ecclesiastical Order. 
It is a mean or instrument of the single and eternal 
purpose of the Church. In the last resort it is an 
Ecclesiastical Institution". For this reason all human 
laws {leges) find their boundaries set and their spheres | 
of competence assigned to them by the law spiritual i 
{canonesY^. For this reason the Temporal Power is 
subject to and should obey the SpirituaP". For this 
reason the offices of Kaiser, King, and Prince are 
ecclesiastical offices^\ 

From these fundamental principles flowed with The Pope 
logical necessity the claims to Over-Lordship which swords, 
the Pope, as bearer of the sovereign Sacerdotium, 
urged against the Emperor as bearer of the Imperium, 
and also against all other independent wielders of 
worldly might. That the Emperor, and likewise all 
other Rulers, derive their offices but mediately from 
God, and immediately from the Church's Head, who 
in this matter as in other matters acts as God's Vice- 
Regent — this became the general theory of the Church. 
It was in this sense that the allegory of the Two Swords^ 
was expounded by the ecclesiastical party. Both 
Swords have been given by God to Peter and through 
him to the Popes, who are to retain the spiritual sword, 
while the temporal they deliver to others. This 
delivery, however, will confer, not free ownership, but 



[4 Political Theories of the Middle Age. 



the right of an ecclesiastical office-holder. As before 
the delivery, so afterwards, the Pope has utrumque 
gladium. He has both Powers habitu, though only 
the Spiritual Power adu. The true ownership {domi- 
nium) of both swords is his, and what he concedes in 
the temporal sword is merely some right of independent 
user, which is characterized as usus immediatus, or 
perhaps as dominium utile^. In the medium of feudal 
law the papal right in the Temporal Power appears 
as neither more nor less than a feudal lordship. The 
Emperor assumes the place of the highest of papal 
vassals, and the oath that at his coronation he swears 
to the Pope can be regarded as a true homagium^. In 
any case the Emperor and every other worldly Ruler 
are in duty bound to use in the service and under the 
direction of the Church the sword that has been en- 
trusted to them". It is not merely that the Pope by 
virtue of his spiritual sword may by spiritual means 
supervise, direct and correct all acts of rulership*". 
Much rather must we hold that, though in the general 
course of affairs he ought to refrain from any immediate 
intermeddling with temporal matters, and to respect 
the legitimately acquired rights of rulers^, he is none 
the less entitled and bound to exercise a direct control 
of temporalities whenever there is occasion and reason- 
able cause for his intervention {casualiter et ex ratio- 
nabili causa)"". Therefore for good cause may he 
withdraw and confer the Imperium from and upon 
peoples and individuals^ : and indeed it was by his 
plenitude of power that the Imperium. was withdrawn 
from the Greeks and bestowed upon the Germans 
{translatio Imperii)'^. His is it to set Kaisers and 
Kings over the peoples, and the right so to do he uses 
whenever no other mode of instituting a ruler has 
been established or the established mode has shown 



Unity in Church and State. 15 

its insufficiency™. In particular, if the Emperor is 
chosen by the Prince-Electors, this is a practice which 
rests solely upon a concession which the Pope has 
made and might for good cause revoke ''. It is he ^ 
that is and remains the true Imperial Elector. There- 
fore to him pertains the examination and confirmation 
of every election ; upon him devolves the election 
whenever, according to the rules of Canon Law, a case 
of ' lapse ' occurs ; and it is by his act of unction and 
coronation that the Emperor Elect first acquires im- 
perial rights*". In case of vacancy or if the temporal 
Ruler neglects his duties, the immediate guardianship 
of the Empire falls to the Pope*". And lastly, it is for ^ 
him to judge and punish Emperors and Kings, to 
receive complaints against them, to shield the nations 
from their tyranny, to depose rulers who are neglectful 
of their duties, and to discharge their subjects from the 
oath of fealty^. 

All these claims appeared as logical consequences The Com- 
of a legal principle ordained by God Himself. The Mankind 
subsidiary arguments touching the Pope's right and loveretgn- 
title, arguments derived from history and positive law, Church! 
had no self-sufficient validity, but were regarded as 
mere outward attestations and examples. Conversely, 
no title founded on Positive Law could derogate from 
the Divine Law of the Church. For this reason what- 
ever was in the first instance said of the Emperor's 
subjection to the Pope could be analogically extended 
to every other temporal Ruler''. And thus in fact was 
derived immediately from the lus Divinum an ideal 
Constitution comprehending all Mankind, a Consti- 
tution which by the universal Sovereignty of the 
Church thoroughly satisfied the postulate of Unity 
above Duality. 

Very rarely in the Middle Age were the partizans 



1 6 Political Theories of the Middle Age. 



Opposition of the Secular State bold enough to attempt a con- 
High version of this theory to the interest of the Temporal 
rtieo'4'^ Power, or to deduce from the Principle of Unity a 
Sovereignty of the State over the Church. It is true 
that the earlier age in which the Church was more or 
less completely subjected to the Empire was never 
wholly forgotten^. Yet was the reminiscence of it 
seldom used except as a purely defensive weapon. 
/ Even Qckham will go no further than the hypothetical 
assertion that if really and truly there must be just one 
single State comprising all Mankind with just one 
single Head upon Earth, then this Head must be the 
Emperor, and the Church can be no more than a part 
|of his Realm''. L onely in th e Middle Age was Mar- 
si lius of Padua when he taught as a principle the 
Ico mplete absorption ot Church m StatR7~ He, like 
othe rs, deduced conclusion s ^rcm i-Vip rde^ of Unity: 
but then with him this idea assumed a thoroughly un- 
medieval form. Already it was transmuting itself into 
the ' antique-modern ' idea of an all-comprehending 
internal Unity of the State and was proclaiming in 
advance those principles of the State's Absolutenesr 
which would only attain maturity in a then distant 
future. To this we must return hereafter. 
The theory In general throughout the Middle Age the doctrine 
ordinate of the State's partizans remained content with the oldei 
powers, tgaching of the Church : namely, that Church and State 
were two Co-ordinate Powers, that the Two Swords 
were potestates distinctae, that Sacerdotium and Im- 
perium were two independent spheres instituted by 
God Himself. This doctrine therefore claimed for 
the Temporal Power an inherent authority not derived 
from ecclesiastical canons *'. In century after century 
it fought a battle for the principle that the Imperium, 
~\^ like the Sacerdotium, proceeds immediately from God 



Unity in Church and State. 17 

{imperium a Deo), and therefore depends from God y> 
and not from the Church (imperium non dependet ab 
ecclesid)*^. Now with more and now with less vigour 
this doctrine contested the various claims that were 
urged on the Church's side against the Emperor and 
Temporal Power*^. Still it conceded a like sovereignty 
and independence to the Spiritual Sword, and merely , 
demanded that the Ecclesiastical Power should confine 
itself within the limit of genuinely spiritual affairs, 
the Church having been instituted and ordained by 
God as a purely Spiritual Realm*". Nay, this theory 
was almost always willing frankly to admit that, when 
compared with the State, the Church, having the 
sublimer aim, might rightly claim, not only a higher — • 
intrinsic value, but also a loftier external rank". 

The writers, however, who took the State's side in Unity and 
the debate, they also were full of the idea of the or- coordinate 
ganized Oneness of all Mankind, and could see in the ^°^"^' 
Spiritual and Temporal Orders but two sides of the 
one Christian Commonwealth. So in a two-fold wise 
they endeavoured to reduce the contending principles 
to Unity. Sometimes they held that the external 
Unity of the Universal Realm finds an adequate 
presentment in that Celestial Head in which the Body 
of Mankind attains completion — a Head whence the 
two Powers flow and whither they return in con- 
fluence". Sometimes they developed the thought that 
in the terrestrial sphere an internal Unity of the two 
Orders will suffice: such a Unity as results from 
internal connexion and mutual support. The Sacer- 
dotium and the Imperium, each of these, taken by 
itself was but one vital Function of the social Body, 
and the fulness of Life was only attained by their 
•harmonious concord' and by their mutually, supple- 
menting co-operation in the task that is set before 

M. « 



[8 Political Theories of the Middle Age. 



Mankind"- Hence were drawn, not only the conclu- 
sion that the State must be subject to the Church in 
Spirituals, and the Church to the State in Temporals", 
but also a remarkable and further reaching theory 
by virtue whereof each of the two powers can and 
must in case of necessity (casualiter and per accidens) 
assume, for the weal of the whole body, functions which 
in themselves are not its proper functions. By such a 
'law of necessity' an explanation could be given of 
those historical occurrences which seemed to stand in 
contradiction to a system which severs the Two 
Swords, and from such a ' law of necessity ' political 
consequences of a practical kind could be deduced. 
Since, when there is a vacancy in the office of supreme 
temporal Magistrate, it is for the Pope to judge even 
temporal matters, the translatio imperii, the decision 
of disputed elections to the Empire, nay, in some 
circumstances even the deposition of a Kaiser, might 
perhaps have fallen within the Pope's competence*. 
But the same legal principle required that in case of 
necessity the Temporal Head of Christendom should 
take the Church under his care, and either himself 
decide ecclesiastical controversies or else summon a 
General Council to heal the faults of the Church*. 
Unity Then when each of these two Orders is taken by 

Church itself we once more see the medieval Principle of 
and State. Unity at work and constituting that Order as a single 

whole. 
Visible From it there arises within the Church the idea of 

of the the divinely instituted, visible and external Unity of 
the Spiritual Realm. Throughout the whole Middle 
Age there reigned, almost without condition or qualifi- 
cation, the notion that the Oneness and Universality 
of the Church must manifest itself in a unity of law, 
constitution and supreme government*, and also the 



Unity in Church and State. 19 



/ 



notion that by rights the whole of Mankind belongs to 
the Ecclesiastical Society that is thus constituted"". 
Therefore it is quite common to see the Church 
conceived as a ' State.' That the Principle of Oneness 
demands of necessity an external Unity was but very 
rarely doubted''^ Very slowly was ground won by a 
reaction which protested, not merely against the in- 
creasing worldliness of the Church, but also against 
the whole idea of a ' Spiritual State.' It was reserved 
for J5i,jwU£- andL _Hus d ecisively to demand that the 
Church should be conceived in a more inward, less 
external, fashion, as the Community of the Predestin- 
ated, and so to prepare the way for that German 
Reformation which at this very point broke thoroughly 
away from the medieval Idea of Unity'l 

Similarly within the mundane sphere the Middle Unity 
Age deduced from the Principle of Oneness the temporal 
divinely ordained necessity of a one and only World- imperial- 
State™. Theological, historical and juristic arguments '^™' 
were adduced to prove that the world-wide Roman 
Dominion was the final member in that series of 
Universal Monarchies which was foreordained and 
foretold by God, and that, despite many appearances 
to the contrary, this Roman Dominion was legitimately 
acquired and legitimately administered even in the 
days of heathenry". Then this Dominion was hal- 
lowed and confirmed by the birth, life and death of 
Christ. It was transferred for a while to the Greeks 
by Constantine, but finally with the approval of God 
was conferred upon the Germans'". Therefore the 
Romano-German Kaiser, as immediate successor in 
title to the Caesars, was by divine and human law 
possessed of the Imperium Mundi, by virtue whereof 
all Peoples and Kings of the earth were subject unto 
him". Like the Roman Church, the Roman Realm 



20 Political Theories of the Middle Age. 



was indestructible until the time when its downfall 
would usher in the Judgment Day'". Consistent be- 
lievers in this Imperial Idea drew the further conclusion 
that de iure, as well as de facto, thfs Monarchy of 
divine right was indestructible. Neither custom nor 
privilege could effect any deliverance from its sway 
that would have any sort of legal validity. Every 
alienation, every partition, every other human act 
which diminished this Empire, even though the act 
were done by the Emperor's self, was de iure null and 
void*®. For a long while even doubters and opponents 
would not directly call in question this Imperial Idea, 
but would only maintain the legal validity of excep- 
tions that were based upon privilege or prescription'*, 
and there were many who expressly asserted that 
exceptions of this kind did not impugn the idea of the 
Realm Universal™. 
Imperial Nevertheless, as a matter of fact the principle of 

contested, the Universal State was assailed while as yet the 
principle of the Universal Church was not in jeopardy. 
Especially in France, we hear the doctrine that the >y 
Oneness of all Mankind need not find expression in a / 
one and only State, but that on the contrary a Plurality 
of States best corresponds to the nature of man and of 
temporal power". Thus at this point also medieval 
theory develops modern ideas, the process of develop- 
ment being in harmony with the growth of National 
States in the world of fact. 
Theory of If, however, medieval thought, whenever it was 
poups. purely medieval, postulated the visible Unity of Man- 
Jiit^"^' kind in Church and Empire, it regarded this Unity as 
prevailing only up to those limits within which Unity 
is demanded by the Oneness of the aim or object of 
Mankind. Therefore the Unity was neither absolute 
nor exclusive, but appeared as the vaulted dome of an 



structure. 



Unity in Church and State. 21 

organically articulated structure of human society. In 
Church and Empire the Total Body is a manifold and 
graduated system of Partial Bodies, each of which, 
though itself a Whole, necessarily demands connexion 
with the larger Whole®". It has a final cause of its 
own, and consists of Parts which it procreates and 
dominates, and which in their turn are Wholes ™. Be- 
tween the highest Universality or 'All-Community' 
and the absolute Unity of the individual man, we find 
a series of intermediating units, in each of which ^ 
lesser and lower units are comprised and combined. 
Medieval theory endeavoured to establish a definite 
scheme descriptive of this articulation, and the gradu- 
ated hierarchy of the Church served as a model for a 
parallel system of temporal groups. When it comes to 
particulars, there will be differences between different 
schemes ; but it is common to see five organic groups 
placed above the individual and the family : namely 
village, city, province, nation or kingdom, empire : but 
sometimes several of these grades will be regarded as 
one". 

But as time goes on we see that just this federal- Federal- 

r 1 f ■ 1 TTTi 1 J istic and 

istic construction of the Social Whole was more and central- 
more exposed to attacks which proceeded from adencies? 
centralizing tendency. This we may see happening 
first in the ecclesiastical and then in the temporal 
sphere. The ' antique-modern ' concept of the State- 
Unit as an absolute and exclusive concentration of all 
group-life gradually took shape inside the medieval 
doctrine, and then, at first unconsciously but afterwards 
consciously, began to burst in pieces the edifice of 
medieval thought. Hereafter we shall return to this 
process of disintegration; for the moment we will 
continue to pursue the leading ideas of the medieval 
publicists. 



22 Political Theories of the Middle Age. 



IV. The Idea of Organization. 
Society as Medieval Thousfht proceeded from the idea of a 

Organism. ^ o i 

single Whole. Therefore an organic construction of 
Human Society was as familiar to it as a mechanical 
and atomistic construction was originally alien. Under 
the influence of biblical allegories and the models set 
by Greek and Roman writers, the comparison of 
Mankind at large and every smaller group to an 
animate body was universally adopted and pressed. 
This led at an early time to some anthropomorphic 
conceits and fallacies which do not rise above the 
level of pictorial presentment'', but also to some 
fruitful thinking which had a future before it". 
Mankind j^ ^^ j^j-st place. Mankind in its Totality was 

aS one ■*■ J 

Organism, conceived as an Organism. According to the allegory 
\ that was found in the profound words of the Aposde — 
an allegory which dominated all spheres of thought — 
Mankind constituted a Mystical Body, whereof the 
Head was Christ"'. It was just from this principle 
that the theorists of the ecclesiastical party deduced 
the proposition that upon earth the Vicar of Christ 
represents the one and only Head of this Mystical 
Body, for, were the Emperor an additional Head, we 
should have before us a two-headed monster, an animal 
bleeps'^. Starting from the same pictorial concept, the 
theorists of the imperial party inferred the necessity of 
a Temporal Head of Christendom^, since there must 
needs be a separate Head for each of those two 
Organisms which together constitute the one Body'™. 
The ultimate Unity of this Body, they argued, was 
preserved by the existence of its Heavenly Head, for, 
though it be true that the body mystical, like the body 
natural, cannot end in two heads, still there is exacdy 



The Idea of Organization. 23 

this difference between the two cases, namely, that in 
the mystical body under its one Supreme Head there 
may be parts which themselves are complete bodies, 
each with a head of its own'^. 

Moreover, from of old, behind the conception of The 
Mankind as Organism, lay the desire that State and Body. 
Church should complete each other and unite with w 
each other into a one and only life. At this point 
ecclesiastical theorists could make profit of the old 
comparison which likens the Realm to the body and 
the Priesthood to the soul. A basis might thus be 
easily acquired for all their assertions touching the 
subjection of State to Church '^ Their opponents 
sometimes tried to substitute one picture for another", 
but sometimes were content with resisting inferences. 
The latter course was taken, for example, b y Nicholas 
of_Cues when he drew his magnificent portrait of Or- 
ganized Mankind. For him the Ecclesia is the Corpus 
Mysticum. Its Spirit is God and His Sacramental 
Dispensation. Its Soul is the Priesthood, and All the 
Faithful are its Body. But the Ghostly Life and the 
Corporal are, according to Nicholas, separately consti- 
tuted and organized under the Unity of the Spirit, so 
that there are two Orders of Life with co-ordinate and 
equal rights. But as each Order is merely a side of 
the great Organism, they must unite in harmonious 
concord, and must permeate each other throughout the 
whole and in every part. As the soul, despite its 
unity, operates in every member as well as in the total 
body {est tota in toto et in qualibet parte), and has the 
body for its necessary correlate, so there should be 
between the Spiritual and Temporal Hierarchies an 
inseverable connexion and an unbroken interaction 
which must display itself in every part and also 
throughout the whole. To every temporal member of 



24 Political Theories of the Middle Age. 

this Body of Mankind corresponds some spiritual 
office which represents the Soul in this member. 
[*Thus the Papacy will be Soul in the brain; the 
Patriarchate will be Soul in the ears and eyes; the 
Archiepiscopate, Soul in the arms, the Episcopate, 
Soul in the fingers, the Curacy, Soul in the feet, while 
Kaiser, Kings and Dukes, Markgrafs, Grafs, 'Rectores' 
and the simple laity are the corresponding members of 
the ' corporal hierarchy '*.'] 
Bodies Like Mankind as a whole, so, not only the Univer- 

poiitic sal Church and the Universal Empire, but also every 
Particular Church and every Particular State, and indeed 
every permanent human group is compared to a natural 
body {corpus naturale et organicum). It is thought of 
and spoken of as a Mystical Body. Contrasting it 
with a Body Natural, Engelbert of Volkersdorf [1250 — 
131 1] already uses the term 'Body Moral and Politic".' 
Anthropo- At a Still early time some men, anticipating modern 
errors, spun out this comparison into superficial and 
insipid detail. John of Salisbury made the first at- y 
tempt to find some member of the natural body which 
would correspond to each portion of the State''. He 
professedly relied upon an otherwise unknown Epistle 
to Trajan, falsely attributed to Plutarch, but remarked 
that he had taken thence not his phrases but only the 
general idea". Later writers followed him, but with 
many variations in minor matters ". The most elabo- 
rate comparison comes from Nicholas of Cues, who for 
this purpose brought into play all the medical know- 
ledge of his time". 
Deduc- Still even in the Middle Age there were not 

th "idea™f Wanting endeavours to employ the analogy of the 
MiiUcf'' Animated Body in a less superficial manner, and in 
such wise that the idea of Organization would be more 

• In the original this passage stands in a footnote. — Transl. 



The Idea of Organization. 25 

or less liberated from its anthropomorphic trappings. 
Already John of Salisbury deduced thence the propo- > 
sitions — indisputable in themselves — that a well ordered 
Constitution consists in the proper apportionment of 
functions to members and in the apt condition, strength 
and composition of each and every member ; — that all 
members must in their functions supplement and sup- 
port each other, never losing sight of the weal of the 
others, and feeling pain in the harm that is done to 
another; — that the true unitas of the Body of the State 
rests on the just cohaerentia of the members among 
themselves and with their head™. Thomas Aquinas, 
Alvarius Pelagius and many others applied the doctrine 
in its traditional and mystical vestments to the struc- 
ture and unity of the Church°\ Ptolomaeus of Lucca 
pursued the thought that the life of the State is based 
upon a harmony analogous to that harmony of organic 
forces (vires organicae) which obtains in the Body 
Natural, and that in the one case as in the other it is 
Reason, which, being the ruler of all inferior forces, 
brings them into correlation and perfects their unity"". 
Aegidius Colonna, who constantly employs the picture 
of the Body Natural, leads off with the following 
statement: — 'For as we see that the body of an 
animal consists of connected and co-ordinated mem- 
bers, so every realm and every group {congregaiio) 
consists of divers persons connected and co-ordinated 
for some one end.' Consequently he distinguishes the 
'commutative justice' which regulates the relations 
between the members and furthers their equipoise, 
their reparation and their mutual influence, from the 
' distributive justice,' which proceeding outwards from 
some one point, such as is the heart in the body, 
distributes and communicates in due proportion vital 
force and movement to the several members'". Engel- 



26 Political Theories of the Middle Age. 

bert of Volkersdorf based his whole exposition of the 
external and internal goods of the well-ordered State 
upon the supposition of a thorough-going analogy 
between State and Individual ; the Individual as Part 
and the State as Whole are governed by like laws and 
benefited by like virtues and qualities'*. In an original 
y and spirited fashion Marsilius of Padua, who founded 
his doctrine of the State upon the proposition ' civitas 
est velut animata seu animalis natura quaedam,' carried 
out the comparison of a well-ordered State to an 
' animal bene dispositum ' : only in the case of the 
animal the constitutive principle is mere natural force, 
while in the case of the State it is the force of human 
reason, and therefore the life of the organism is 
governed in the one case by the Law of Nature and 
in the other by the Law of Reason. So he compared 
even in detail the Reason which fashions the State 
with the Nature which shapes organisms. In both 
instances a Plurality of proportionately adjusted Parts 
is ordered into a Whole in such a way that they 
communicate to each other and to the Whole the 
results of their operations (componitur ex quibusdam 
proportionatis partibus invicem ordinatis suaque opera 
sibi mutuo communicantibus et ad totum). When the 
union is at its best, when it is optima dispositio, the 
consequence in the Body Natural is health, and in the 
State it is tranquillitas. And, as in a healthy body 
every part is perfectly fulfilling its own proper functions 
(perfecte facere operationes convenientes naturae suae), 
so the tranquillitas of the State results in the perfect 
performance of all functions by those parts of the State 
to which, in accordance with Reason and constitutional' 
allotment, such functions are respectively appropriate 
(unaquaeque suarum partium facere perfecte opera- 
tiones convenientes sibi secundum rationem et suam 



The Idea of Organization. 27 

institutionem) *". Oc kham , who in many contexts 
treated the State as an organism, deduced, in a 
manner that was his own, the principle that in case 
of need one organ can supply the place of another, and 
so the State may in some cases exercise ecclesiastical 
and the Church temporal functions'*. Manifold em- 
ployment was found for this analogy between State 
and Body Natural by Dante, John of Paris, Gerson, 
d'Ailly, Peter of Andlau and other writers of the 
fourteenth and fifteenth centuries. This mode of 
thought, however, attained its most splendid develop- 
ment in Nicholas of Cusa's system of Cosmic Harmony. 
He endeavours to present to our eyes a harmonious 
equipoise between, on the one hand, the separate vital 
spheres of all the particular social organisms — be they 
large or small — and, on the other hand, the higher and 
wider spheres of combined activity proper to those 
superior organisms which the inferior engender by 
their coalition. 

Then from the fundamental idea of the Social Meas of <y' 
• iTi;r'iiiA 11 1 • <-i Member- 

Organism, the Middle Age deduced a series of other ship, 

ideas. In the first place, the notion of Membership tiation, 

was developed to portray the positions filled by in- fndfhe"' 

dividual men in the various ecclesiastical and political ''''«• 

groups. It is remarked, on the one side, that the 

Member is but part of a Whole, that the Whole is 

independent of the changes in its parts, that in case of 

collision the welfare of the Member must be sacrificed 

to that of the Body ; and, on the other side, that the 

Whole only lives and comes to light in the Members, 

that every Member is of value to the Whole, and that 

even a justifiable amputation of a Member, however 

insignificant, is always a regrettable operation which 

gives pain to the Whole". Then again, from the 

notion of an Organism, whose being involves a union 



28 Political Theories of the Middle Age. 

of like with unlike, was derived the necessity of differ- 
ences in rank, profession and estate, so that the 
individuals, who were the elements in ecclesiastical 
and political Bodies, were conceived, not as arith- 
metically equal units, but as socially grouped and 
differentiated from each other™. Moreover, from the 
picture of the human body was obtained the notion of 
a Mediate Articulation, by virtue whereof smaller 
groups stood in graduated order between the supreme 
Unit and the Individual **. In particular, the necessity 
of this arrangement was upheld against the centralizing 
efforts of the Popes which tended to break through the 
organic structure of the Church"". Furthermore, the 
constitutional order which combined the Parts into a 
Whole was regarded as an Organization which imitated 
the processes of Nature. The task therefore that was 
set before it was that of so ordering the parts, that, as 
Marsilius of Padua says, every of them might perfectly 
and undisturbedly act upon all the rest and so form a 
Whole, or, as Ptolemy of Lucca opines, the lower 
forces should be set in motion and controlled by the 
higher, and all by the highest force". Naturally there- 
fore the idea of a Function {operatio, actus, officiuni) of 
the Whole Body"" seemed appropriate to every case of 
social activity, and the member which performs the 
function appeared as an Organ"*. Lastly, from the 
nature of an Organism was inferred the absolute 
necessity of some Single Force, which as summunt 
movens, vivifies, controls and regulates all inferior 
forces. Thus we come to the proposition that every 
Social Body needs a Governing Part {pars principans) 
which can be pictured as its Head or its Heart or its 
Soul**. Often from the comparison of Ruler to Head 
the inference was at once drawn that Nature demanded 
Monarchy, since there could be but one head°°: nay. 



The Idea of Organization. 29 

not unfrequently the inference that, were it not for 
connexion with a rightful Head, the whole Body and 
every member thereof would be altogether lifeless '*. 
Other writers however expressly rejected these fal- 
lacies, urging that, despite all resemblance, there are 
differences between Natural Bodies and Mystical °*. 

The comparison appears once more when medieval Growth 
theory deals with the Origin of ecclesiastical and Creation 
political groups. However, in accordance with itsorg^n- 
general view of the Universe, it could not find the'^"^' 
constitutive principle of the group in a natural process 
of Growth, but in every case had recourse to the idea 
of Creation. Therefore, on the one hand, a divine 
act of Creation appeared as the ultimate source of all ^ 
social grouping, in such sort that the divine influence 
either (as was beyond doubt the case of the Church) 
directly fashioned and animated the Mystical Body, or 
else less directly effected the union of Parts in Whole 
by virtue of some natural and instinctive impulse. On 
the other hand, a creative act performed by man is 
supposed, more or less explicitly by most of the 
theorists, for to produce the State in conformity with 
the type of organization which Nature supplies is in 
their eyes the work of human Reason °', In elaborate 
detail Marsilius of Padua endeavoured to explain how 
the Reason which is immanent in every Community 
engenders the Social Organism by a conscious imitation 
of the life-making forces of Nature". 

Howbeit, though at all these points an energetic Theo^ 
expression was found 'for the thought that human conceive 
groups are organic, nevertheless medieval doctrine and state 
paused here without attaining that ultimate resting ^ p^"^""^- 
place where it would have been able to formulate this 
thought in the terms of jurisprudence. As in Antiquity, 
so also in the Middle Age, the idea of Organic Society 



30 Political Theories of the Middle Age. 

failed to issue in the legal idea of Personality — the 
single Personality of the group — and yet it is only 
when this process has taken place that the idea which 
is before us becomes of service in legal science. 
Therefore it is that medieval doctrine, despite all the 
analogies that it drew from organic life, might indeed 
occasionally conceal, but could not permanently hinder, 
the progress of a mode of thought which regards the 
State as a mechanism constructed of atoms. Indeed 
that mode of thought lay in the womb of the medieval 
theory. But of that, hereafter. 

V. The Idea of Monarchy. 

Medieval We must now turn to that idea of Monarchy which 
pre erence gQ^emed all truly medieval theory and was intimately 
onarc y. connected with those fundamental notions which we 
have been portraying. Through all the work of 
medieval publicists there runs a remarkably active drift 
towards Monarchy ; and here we see a sharp contrast 
between antique and medieval thinking. 
God as The Middle Age regards the Universe itself as a 

single Realm and God as its Monarch. God therefore 
is the true Monarch, the one Head and motive prin- 
ciple of that ecclesiastical and political society which 
comprises all Mankind '°°. All earthly Lordship is a 
V limited representation of the divine Lordship of the 
World. Human Lordship proceeds from, is controlled 
by, and issues in, divine Lordship. Therefore as 
permanent Institutions, the ecclesiastical and temporal 
' Powers that be ' are ordained of God. If at one 
moment the champions of the Church were inclined to 
contest the truth of this principle when applied to the 
temporal Power, still, as time went on, even extreme 
partizans were once more willing to concede the divine 



"^he Idea of Monarchy, 31 



origin — at least the mediately divine origin— of the 
State ^^ while on the immediately divine origin of the ^ 
State great stress was laid by the advocates of secular 
Government^'", Furthermore, the office and authority 
of every particular wielder of Lordship flow from God. >^' 
Immediately or mediately He is the lender of all 
power, using as His tools the Electors or other con- 
stituents of the Ruler. Immediately from God derives-' 
the office of His ecclesiastical Vicar™. The like, so 
said imperialists, is true of the Kaiser who is God's 
temporal Vicar"", while their opponents here intro- 
duced the mediating action of the Church, but just for 
that reason expressly declared that the imperial office 
and all other lordships were loans from God'™. And 
so too, not only the sovereign right of the independent 
ruler, but every magisterial function may be mediately 
traced to Him, for all powers that are sub-demised by 
superior rulers can in the last resort be regarded 
as emanations from the divine Government of the 
World '^ 

But since, as already said, every Partial Whole Divine 
must be like unto the Universal Whole, the Monarchical Monarchs. 
Constitution of ecclesiastical and political groups needed 
no further proof. Almost with one voice, the medieval 
publicists declared a monarchical to be the best form of v 
Constitution. They thought that they found, not only 
in the Universe at large, but throughout animate and 
inanimate Nature, a monarchical order, and thence 
they drew the conclusion that this order is the best 
also for Church and State. Attempts were made to 
strengthen this conclusion by historical and practical 
arguments ; but in the main it rests on philosophical 
reasoning as to the essence of all human Communities. 
In this context all arguments descend from the prin- 
ciple that the essence of the Social Organism lies in 



32 Political Theories of the Middle Age. 

Unity, that this Unity must be represented in a 
Governing Part, and that this object can be best 
attained if that Governing Part be in itself a Unit 
(^per se unum) and consequently a single individual '*. 
Dante gave yet deeper import and sharper form to this 
thought when he argued that the unifying principle of 
Bodies Politic is Will, and that, for the purpose of 
presenting a Unity of Wills (unitas in voluntatibus) 
the governing and regulating Will of some one man 
{voluntas una et regulatrix) is plainly the aptest 
mean"«. 
Monarchy From this prcferability of Monarchy it followed 
and State, that in the Church, whose constitution was founded 
directly by God, Monarchical Government existed 
iure divino, for God could will for His Church none 
but the best of constitutions"'. In like fashion the 
doctrine which taught that the Empire also was willed 
by God led to the assertion of a divine institution of 
J the Kaiser's universal Monarchy "". Similarly in every 
Body which is a Member of the Church or Empire, 
and consequently in every human group, a monarchical 
appeared to the Middle Age as the normal form of 
government "'. The current legal doctrine of corpora- 
tions was wont either tacitly to assume that every 
corporation would have, — or even expressly to assert 
that it must have, — a monarchical head. 
Com- But here once more a germ of disintegration was 

forms of introduced into Medieval Theory by the references 
mrat™" that it made to Antiquity. Those who in their proof 
of the excellence of Monarchy appealed to Aristotle 
would also borrow from him the doctrine of Republican 
Constitutions, their forms, conditions, advantages'". 
But the divine right of Monarchy was threatened so 
soon as comparisons of this kind were instituted. In 
4 truth we begin often to hear the opinion that no one 



The Idea of Monarchy. 33 



form of government is more divine than another, that 
the advantages of Monarchy are relative, not absolute, 
and that there may be times and circumstances in 
which Republican Constitutions would deserve prefer- 
ence"'. In particular, whenever the Kaiser's imperium 
mundi is disputed, an attack is made upon the founda- 
tion of the medieval ideal of Monarchy, and utterance 
may be given even to the opinion that the State which 
comprehends all Mankind may perchance be conceived y- 
as an Aristocracy: an Aristocracy of Sovereigns"*. 
Even in the ecclesiastical region the divinity and 
necessity of Monarchy did not escape all doubts'". 
And then in the books of the humanists we often 
encounter an outspoken preference for antique, repub- 
lican forms"". Already in the fourteenth century there 
were decisive assertions that the argumentum unitatis 
gives no unconditional judgment for Monarchy, since 
the unitas principatus is possible and necessary in a 
Republic"'. In this context it became usual to repre- 
sent the ruling Assembly of a Republic as a composite 
Man, and, in the antique manner, it could be con- 
trasted with the mass of the ruled "°, so that the Mon- 
archical State and the Republican could be brought 
under one and the same rubric. 

So again, as regards the Monarch's position in the The 
State there was a mixture of and a struggle between position. 
medieval and antique-modern thought. 

The genuinely medieval lore saw in every Lordship 
a personal office derived from God. Despite all refer- 
ences to the Antique, what we have here is plainly the 
Germanic idea of Lordship, but that idea had received 
a new profundity from Christianity. 

So there was, on the one hand, a tendency to exalt Apotheosis 
the person of the Ruler. In his own proper person Monarch. 
he was thought of as the wielder of an authority that 

M. 3 



34 Political Theories of the Middle Age. 

came to him from without and from above. He was 
set over and against that body whereof the leadership 
had been entrusted to him. He had a sphere of 
powers which was all his own. He was raised above 
and beyond the Community"'. The Universal Whole 
being taken as type, the relation of Monarch to State 
v' was compared with that of God to World. Nay, even 
a quasi-divinity could be ascribed to him, as to the 
Vice-Gerent of God"". The lengths that the Pope's 
supporters could go in this direction are well known "^'i 
and their opponents lagged not behind when Kaiser 
and Kings were to be extolled™. 
Mon^chr None the less, however, the thought that Lordship 
is Office found emphatic utterance. The relation- 
ship between Monarch and Community was steadily 
conceived as a relationship which involved reciprocal 
Rights and Duties. Both Monarch and Community 
were 'subjects' of political rights and duties, and it 
was only in the union of the two that the Organic 
Whole consisted. Moreover, in the Community all 
the individuals stood in legal relationships to the 
Monarch : relationships which properly deserved to 
be called legal and which were of a bilateral kind. 
Lordship therefore was never mere right ; primarily 
it was duty ; it was a divine, but for that very reason 
an all the more onerous, calling ; it was a public 
office ; a service rendered to the whole body'^. Rulers 
are instituted for the sake of Peoples, not Peoples for 
the sake of Rulers'". Therefore the power of a Ruler 
is, not absolute, but limited by appointed bounds. 
His task is to further the common weal, peace and 
justice, the utmost freedom for alP**. In every 
breach of these duties and every transgression of the 
bounds that they set, legitimate Lordship degenerates 
into Tyranny"". Therefore the doctrine of the uncon- 



The Idea of Monarchy. 35 

ditioned duty of ob edience wa s wholly foreign to the 
Middle Age . Far rathe r e very duty of obedience wa s 
conditioned by the rightfuln ess of the command . Tha t 
every ingmSual must obey Gq d^ rather than "any 
earthly superior ap peared as an absolutely indisputable 
truth^'^. If, however, already at an early time, some 
writers went no further in limiting the obedience due 
from subjects than this point — a point to which Holy 
Scripture itself would carry them — and, in opposition 
to the claims of the Tyrant, allowed only the right and 
duty of a martyr's ' passive resistance ^'",' still the 
purely medieval^ doctrine went much further. For 
one thing, it taught that ever y command whic h ex- 
ceed'ed^Hie limits of tlie Ruler's authority was^ for bis 
subjects a~mere~ n ullity and oblig ed none Jo ^obedi-^ 
ence^. And then again, it proclaimed the right of 



resista nce, and eve n arme d resistance, against th e com - 
pulsory enforcement of any unrighteous and tyrannical 
iheasur &^suc h enforcernent' being Tegarded' ^^"arilLCt " 

^tbare^ violencgi. Nay more, it taught (though sonie 
men with an enlightened sense of law might always 
denfthis) that "tyrannicide is justifiable or at least 

Reusable"". 

But alongside of this medieval idea of the Ruler's The idea of 
Office, there appeared already in the twelfth century ^°^^^^^ 
the germ of a doctrine of Sovereignty which in its 
monarchical form exalts the one and only Ruler to an 
absolute plenitude of power. The content of this 
plenitude needed no explanation, its substance was 
inalienable, impartible and proof against prescription, 
and all subordinate power was a mere delegation from 
it. However, during the Middle Age the idea of 
Monarchical SovereientyTemained, eveii^lorTtsb oldest 
champions, bound up with the idea of Office. Nor was 
this"alT7^for its ~2^k2LX'ivic€^^soSK'%i<[^'Sa^ a growing 



36 Political Theories of the Middle ylge. 

opposition, which, always setting a stronger accent 
on the rights of the Community, finally issued in the 
doctrine of Popular Sovereignty. 
Sorereign- It was within the Church that the idea of Mon- 
Pope. * archical Omnicompetence first began to appear. It 
appeared in the shape of ^ plenitudo potestatis attributed 
to the Pope"\ And yet just at this point even the 
extremest theories were unable utterly to abolish the 
notion of an Office instituted for the service of the 
Whole Body or to free the supreme power from every 
limitation'^. Moreover, in antagonism to this explica- 
tion of ecclesiastical Monarchy, there set in a swelling 
movement which not only denied to the Pope any 
power in temporal affairs, but would allow him, even 
in spiritual affairs, no more than a potestas limitata, 
and, in so doing, laid emphatic stress on the official 
character of Monarchy'^l Gradually also the doctrines 
of Conditioned Obedience, of a right of resistance 
against Tyranny, of a right of revolution conferred by 
necessity were imported into the domain of ecclesias- 
tical polity'". 
Sovereign- In the temporal sphere also the idea of Monarchy 
Emperon tended to assume an absolute form when in the days of 
the Hohenstaufen the Jurists began to claim for the 
Kaiser the plenitudo potestatis of a Roman Caesar, 
and soon the complete power of an Emperor was 
I treated as the very type of all Monarchy. Still in the 
Middle Age absolutistic theory invariably recognized 
that the Monarchy which it extolled to Sovereignty 
was subject to duties and limitations'^, and (what is 
more important) there steadily survived an opposite 
doctrine which, holding fast the notion that Monarchy 
is Office, would concede to the Emperor and other 
princes only a potestas timitata and a right conditioned 
by the fulfilment of duty"'. 



r„ 



The Idea of Popular Sovereignty. 37 

The element of Limitation which was thus imma- Limitation 
nent in the medieval idea of Monarchy began to receive arciiy. 
theoretical development in the doctrine of the rights of 
the Community. To this we now must turn. Here- 
after we shall have to observe that the Middle Age set 
legal boundaries to State- Power of every sort, and it is 
matter of course that the Monarch is restricted within 
these, even if all the Powers of the State are united in 
his person. 



VI. The Idea of Popular Sovereignty. 

It is a distinctive trait of medieval doctrine that Develop- 
within every human group it decisively recognizes an Se^idea of 
aboriginal and active Right of the group taken as soverdgn- 
Whole. As to the quality and extent of this Right, 'y- 
there was strife among parties. For all that, however, 
we may also see plainly enough the contrast between 
the once prevalent and strictly medieval conception 
and that antique-modern manner of thought which 
was steadily developing itself. Clearly in the first 
instance what lies before us is the Germanic idea of a 
V Fellowship (die germanische Genossensckafisidee). Just 
as in the actual life of this age, within and without 
the groups constituted by lord and men, there might 
be found what we may call ' fellowshiply' grouping, so 
also, along with the Germanic idea of Lordship, the 
Germanic idea of Fellowship forces its way into the 
domain of learned theory. But antique elements were 
at work in this quarter also. In part their introduction 
was due to the Romano-Canonical doctrine of Corpo- 
rations, whence the publicists were wont to borrow, 
and in part to the influence of the Political Law and 
Political Philosophy of the ancient world. Gradually 



38 Political Theories of the Middle Age. 

they transmuted the medieval lore of the Right of 
Communities until it bore the form of the modern 
doctrine of Popular Sovereignty. As, however, even 
in the Middle Age the thought of Popular Sovereignty 
was connected in manifold wise with the thought of 
the Ruler's Sovereignty, there was here a foundation 
on which the most diverse constitutional systems of an 
abstract kind could be erected : systems which might 
range from an Absolutism grounded on the alienation 
of power by the people, through Constitutional Mon- 
archy, to Popular Sovereignty of the Republican sort. 
Popular J It ^as in the province of Temporal Power that 

sovereign- _ '■ ^ '■ 

ty in the the Right of the Community first assumed a doctrinal 

form. 
The will An ancient and generally entertained opinion 

people and regarded the Will of the People as the Source of 
of Nature. Temporal Power. A friendly meeting took place 
between this traditional opinion and that Patristic 
Doctrine of the State of Nature which the Church was 
propagating. That doctrine taught that at one time 
under the Law of God and the Law of Nature com- 
munity of goods, liberty and equality prevailed among 
mankind. It followed that Lordship made its first ap- 
pearance as a consequence of the Fall of Man"". It 
followed also that the authority of Rulers was grounded 
on human ordinance. Then, during the Strife over 
the Investitures, the Church could draw from these 
premisses the conclusion that this humanly instituted 
Temporal Power must be subject to that Priesthood of 
which God Himself was the direct and immediate 
Founder. The defenders of the State were content 
to resist this ecclesiastical reasoning without deserting 
the old ground. In contrast to theories which would 
insist more or less emphatically on the usurpatory and 
illegitimate origin of Temporal Lordship, there was 



The Idea of Popular Sovereignty. 39 



developed a doctrine which taught that the State had 
a rightful beginning in a Contract of Subjection to 
which the People was party'"". Many reminiscences 
of events in the history of Germanic Law came to the 
help of this theory, as also the contractual form which 
agreements between Princes and Estates had given to 
many of those rights and duties which fell within the 
sphere of Public Law. Still it was also supposed that 
a successful appeal could be made both to Holy Writ, 
which told (IL Reg., v. 3) of a contract made at 
Hebron between David and the People of Israel, and 
also to a principle, proclaimed by the Jurists, which 
told that, according to the ius gentium, every free 
People may set a Superior over itself"". Then, on the 
other hand, efforts were made to demonstrate that the 
human origin thus discovered for the State was not 
incompatible with the divine origin and divine right of 
Monarchy, since the People was but an instrument in 
the hands of God"°, and indeed received from His 
influence the spiritual power of engendering the Ruler's 
Office'". 

The victory of this manner of thinking was largely Contro- 
due to the decisive fact that just in relation to the very a^L^^"^ 
highest of all earthly Powers, the Jurists could find in ''^"'" 
the Corpus Juris a text which seemed expressly to 
indicate the Will of the People as the source of Ruler- 
ship. Ever since the days of the Glossators [the 
twelfth century] the universally accepted doctrine was 
that an act of alienation performed by the People 
in the Lex Regia was lor Positive Law the basis of 
the modern, as well as of the ancient, Empire"^ 

For this cause it was all the easier to generalize Voluntary 
this truth concerning the highest of all temporal Com- the source 
munities, until it appeared as a principle grounded in powfr. 
Divine and Natural Law. Indeed that the legal title 



40 Political Theories of the Middle Age. 



\ to all Rulership lies in the voluntary and contractual 
submission of the Ruled could therefore be propounded 
as a philosophic axiom'*". True, that concrete cases 
might demand the admission that the Power of the 
State had its origin or extension in violent conquest or 
successful usurpation. Still in such cases, so it was 
said, an ex post facto legitimation by the express or 
tacit consent of the People was indispensable if the 
Ruler was to have a good title to Rulership. It was 
in this wise that men sought to explain the existence 
de iure of the Roman Empire, notwithstanding the 
violence which had been employed in its making, for 
they could say that the requisite subiectio voluntaria 
could be found in the tacit consent of the Nations'". 
William of Ockham and Antonius Rosellus go even as 
far as an express constitution of this World-Monarchy 
by the vote of the majority of the Nations, and they 
refer to the doctrine of Corporations to prove that in 
such a case the vote of the majority is conclusive, 
since, on the one hand, the whole of Mankind, if regard 
be had to that original community of goods which is 
prescribed by the Law of Nature, may be treated as a 
single college and corporation (unum collegium et 
corpus), and, on the other hand, the establishment of 
the Universal Monarchy was, in the words of Ockham, 
an act of necessity, or else in the words of Rosellus, 
an act which was don&pro bono cotnmuni^^. 
Reversion If then the Imperium proceeded from the People, 
tothT" the inference might be drawn that it would escheat or 
*°P^" revert to the People whenever no rightful Emperor 
existed. The Church, it is true, avoided this conclu- 
sion by the supposition that, since the advent of Christ, 
the rights of the People had passed to Him and from 
Him to Peter and Peter's successors. On the other 
hand, the opponents of papal claims made manifold 



The Idea of Popular Sovereignty. 41 

use of the idea of Escheat or Reversion. The older 
Jurists were indeed so much entangled in the network 
of the ancient texts that in their eyes the ' subject ' of 
those rights which they ascribed to the populus Roma- 
nus in relation to the Imperium was the populatibn of 
the town of Rome as it existed in their own day. 
About the middle of the twelfth century the followers 
of Arnold of Brescia made a serious attempt to claim 
for the city a right to bestow the vacated Empire"^. 
Leopold von Babenberg was the first forcibly to protest 
against this identification of the Roman townsfolk with 
the sovereign /ci^«/2< J Romanus. The Roman burghers, 
he says, have nowadays no more right than has qui- 
cunque alius populus Romano imperio subiechis; and when 
rights of sovereignty in the Empire are in question, the 
X.trm. populus Romanus must be understood to mean the 
whole People that is subject to the Roman Impermm^" . 

A first application of this idea of the Escheat to the The trans- 
People of a forfeited or otherwise vacant Rulership the Em- 
was made when the opponents of the Popes had to ^"^^' 
explain the so-called translatio imperii: that is, the 
transfer of the Empire from the Greeks to the 
Germans. The Greek Emperor, so it was said, for- 
feited his right, and thereupon the Roman people once 
more acquired power to dispose of the Empire. There- 
fore the consensus populi, which is mentioned on the 
occasion of Charles the Great's coronation, was the true 
act of transfer, and the Pope merely declared and 
executed the Will of the People"'. Leopold von 
Babenberg, however, refuses to recognize this power 
of the Roman citizens, who at that time, so he says, 
neither possessed the Lordship of the World nor repre- 
sented the People of the World. So at this point he 
has recourse to the authority of the Pope, who by 
virtue of necessity — necessity in fact, not necessity in 



42 Political Theories of the Middle Age. 



law — had to occupy the vacant seat of the highest of 
temporal judges'*". 

Guardian- In Hke manner many writers claimed for the People 

vacant^*' a guardianship over the Empire or the State, pending 

^■"P'"- a vacancy of the throne'=°. 

Election of In particular, however, from this same way of 
" ^'' thinking was deduced the right of every People to 
/ choose a new Head in a case of necessity : provided 
that no mode of appointment by a superior and no 
strict right of succession had been established. For all 
power was originally based upon Choice, and Divine 
and Natural Law declared that, as a matter of principle, 
it was for the Whole Body of the ruled to institute its 
Head'*^. True, that by a grant of Lordship to a whole 
family, or, it may be, by other means, an Hereditary 
Monarchy might be validly created'"'. None the less, 
the Elective Principle was preferable, being in fuller 
accord with Divine and Natural Law"^ Therefore it 
is that the Elective Principle prevails in the Empire, 
which needs must have the best of constitutions, and in 
the Empire this principle has always been observed, 
albeit under different forms'". The People may itself 
exercise the right of Election, or may delegate that 
right to others. To such an act of delegation the 
opponents of the papal claims were wont to trace the 
rights of the princely Electors of Germany"", while the 
Pope, so they said, had acted in this matter as one of 
the People, or, at the most, as the People's mandatory'". 
Also it was argued that, as the electing Princes per- 
formed the election as representatives of the whole 
People of the Realm, their act had all the effect of an 
election directly made by the People, and, without any 
co-operation on the part of the Pope, immediately con- 
ferred upon the Elect the full rights of an Emperor'". 
Then as to the rights that the Community could 



The Idea of Popular Sovereignty. 43 

assert against its Ruler when once he had been legiti- Relation of 
mately instituted, there were wide differences of opinion, peopie. 
The conflict of theories appears already in all its sharp- 
ness so soon as the Glossators have begun to controvert 
each other over that translatio imperii irova. populus to 
princeps, which was mentioned in the classical text. 
Some of them declared that there had been a definitive 
alienation, whereby the People renounced its power for 
good and all, and that therefore the People, when once 
subjected to the Emperor, had no legislative power and 
could never resume what it had alienated'™. Others 
saw the translatio as a mere concessio, whereby an office 
and a usus (right of user) were conveyed, while the 
substance of the Imperium still remained in the Roman 
People. Thence they argued that the People is above 
the Emperor {^populus maior imperatore), can at the 
present day make laws, and is entided to resume the 
imperial power"'. The controversy that was thus begun 
within the field of Roman law, extended itself, until in a 
more general fashion the relation between Prince and 
People was brought into debate. Out of the debate 
there issued diametrically opposite systems. 

For those who adopted the first of these explana- The ^ ^^ 
tions of the translatio [that, namely, which told of ' an Ruler's 
out and out conveyance '] it was easy to erect a system Sovereign. 
of Absolute Monarchy upon the original Sovereignty 
of the People. In this sense even the Hohenstaufen 
could acknowledge the derivation of Lordship from the 
Popular Will"", and in fact many lawyers were at pains 
to deduce from that Abdication of the People which 
was implied in the Institution of a Ruler, a Right of 
the Monarch which should be as absolute as they could 

make it. .pj^^ 

Still even the advocates of ' Ruler 's-Sovereignty,' sovereign 
when once they had grounded this upon a Contract of tiie People. 



44 Political Theories of the Middle Age. 

Subjection, were unable to avoid the recognition of 
a right against the Ruler which still perdured in the 
Body of the People. Even they were compelled to 
regard the legal relationship between Ruler and Ruled 
as being in all respects a contractual relationship 
between the Body of the People — which Body could 
be treated as a corporation {universitas) — and its Head, 
so that the People had a strict right corresponding to 
the duty incumbent upon the Sovereign. Furthermore, 
throughout the Middle Age even the partizans of 
Monarchy were wont to concede to the Community an 
active right of participation in the life of the State. 
Political Institutions being what they everywhere were, 
some such concession was almost unavoidable. There 
was unanimity in the doctrine that the consent of the 
Whole Community was requisite for the validation of 
any acts of the Ruler which were prejudicial to the 
rights of the Whole, and among such acts were 
reckoned submission to another lord, alienation or 
partition of the lordship, and indeed any renunciation 
of the essential rights of a lord"\ It was just from 
this uncontested principle that Leopold von Babenberg 
concluded that any act done by an Emperor which 
could be deemed to imply the recognition of the Pope's 
claim to examine and confirm imperial elections, or 
which could be deemed to have effected any sort of 
subjection of the Empire to the Church, was powerless 
to alienate the rights of the Empire and its Princes and 
Peoples without their concurrence'®'. Also men ex- 
plained that, though as matter of pure law this was 
not necessary, still a general custom required that the 
Monarch should of his own free will bind himself not 
to make laws or do other important acts of rulership 
without the consent of the Whole Body or its repre- 
sentatives "^. Not unfrequently the opinion was 



The Idea of Popular Sovereignty. (45 j 

expressed that even the right of deposing the Ruler in 
a case of necessity could be conceded to the People 
without any surrender of the maxim ' Princeps maior 
populo"^: 

Then there was a mediating tendency which sdueht '^^^ r 

o J o system ot 

to combine the idea of the Ruler's Sovereignty with Divided 
that of the People's Sovereignty. It co-ordinated ty. 
Ruler and Community and ascribed the supreme power 
to both of them in union. Those who occupied this 
position rejected Pure Monarchy and held that Limited 
Kingship or a mixture of Monarchy, Aristocracy and 
Democracy was the best of Constitutions'®*. 

On the other hand, the second of the two expla- The 
nations proposed by the Glossators [for the classical Popular 
text touching the Lex Regia] — namely the doctrine ^°^"^^^ 
that the People granted to the Monarch merely 'the 
use' of supreme power — issued, when it was con- 
sistently developed, in the system of pure Popular 
Sovereignty: a Sovereignty that remained in the 
People despite the institution of a Monarch. True, 
that even the advocates of this system held fast the 
thought — and the idea of a Contract with the Ruler 
favoured it — that the relation between People and 
Ruler was a bilateral legal relationship, which conferred 
upon the Ruler an independent right of Lordship, of 
which he could not be deprived so long as he was true 
to his pact. However, no matter what the form of 
government, the People was always the true Sovereign, 
and this was expressly stated by the maxim ' Populus 
maior principe.' Hence was generally drawn the 
inference that the Community still retained a legislative 
power over the Prince and a permanent control over 
the exercise of the rights of Rulership'"". But, in 
particular, the further inference was drawn that, if thg, ^ 
Ituler "'neglected his duties, the People might sit-in 



46 Political Theories of the Middle Age. 



judgment upon him and depose him by right^and 
doom'*'. Just this last consequence was very generally 
drawn, and a peculiar importance was attributed to it. 
Here might be found an explanation of those cases in 
which the Pope had, or might seem to have, deposed 
Emperors and Kings and absolved Nations from the 
duty of subjection. Such cases might be regarded as 
legal precedents without any acknowledgment of papal 
power. The Pope's part in them had been not ' consti- 
tutive' but merely 'declaratory.' The authority had in all 
cases proceeded from the Folk or its representatives'**. 
Monarchy When the matter was regarded from this point of 
public. view, there could be no deep-set difference between 
a Monarch and a Republican Magistrate. 

This, it is true, was not always consciously per- 
ceived. We can hardly, for instance, assert that Leopold 
of Babenberg's mode of thought is republican. Yet he 
expressly teaches that the People of the Empire is 
viator ipso principe, can make laws, especially if there 
be no Kaiser or if the Kaiser neglect his duty, and 
can for sufficient cause transfer the Empire from one 
Folk to another or depose the Emperor. He also 
teaches that every particular People has just the same 
rights against its King'^. 
vj Republic- Decisively republican, on the other hand, is the 
* MarSiius. System of Marsilius of Padua. With all the consist- 
ency of democratic Radicalism it erects an abstract 
scheme dividing power between the universitas civium 
and the pars principans : a scheme which remains the 
same, whatever be the form of government. With 
him the ' Legislator ' must be the Sovereign ; but the 
People is always and necessarily the ' Legislator,' by 
the People being meant the Whole Body or a majority 
of those citizens who are entitled to vote. This inalien- 
able right is to be exercised either in a primary 



The Idea of Popular Sovereignty. 47 

assembly of the People or by its elected representatives. 
Therefore the Will of the People is the efificient cause 
of the State. By legislation it gives an articulate form 
to the State, distributes offices, and binds the various 
parts into a whole. In the first place it erects the 
office of Ruler for the discharge of such business as 
the universa communitas cannot itself undertake. But 
more : the matter, as well as the form, of the Ruler's 
office proceeds from this Sovereign Legislator. The 
wielder of Government is to be appointed, corrected, 
deposed by the Legislator ad commune conferens. The 
Ruler himself is only a part {^pars principalis) of the 
Whole and always remains inferior to the Whole. By 
authority granted to him by the Legislator i^per aucto- 
ritatem a legislatore sibi concessani) he is the State's 
secondary and, as it were, instrumental or executive part 
{secundaria quasi instrumentalis seu executiva pars). 
Therefore in all things he is bound by the laws, and 
finally, since the incorporate body {universitas) is to 
act by his agency, his government will be at its best 
when it conforms most closely to the Will of the 
Whole (iuxta subditorum suorum voluntatem et con- 
sensum ''"). 

An essentially different system was developed by Cusanus 
Nicolas of. Cues in his Catholic Concordance; but lar Sove- '''^ 
none the less decisively was it a system of Popular ^ ' ^' 
Sovereignty. In his eyes, all earthly power proceeded, 
like man himself, primarily from God {principaliter a 
Deo); but a God-inspired Will of the Community was 
the organ of this divine manifestation. It is just in the 
voluntary consent of the Governed that a Government 
displays its divine origin : tunc divina censetur, quando 
per concordantiam, conimunem, a subiectis exorttur. 
Therefore all iurisdictio and administratio are based 
upon electio and upon a freely-willed transfer of power 



48 Political Theories of the Middle Age. 



made by the Community or its majority or representa- 
tives. There is no rightful and holy species dominandi 
that is not founded per viam voluntariae subiectionis et 
consensus in praesidentium praelationes concordantiales. 
Only a Ruler who has been thus appointed is, as bearer 
of the Common Will, a public and ' common ' Person 
{ut sic constitutus, quasi in se omnium voluntatem 
gestans in principando, publica et communis persona 
ac pater singulorum vocetur), and only by recognizing 
himself to be the creature of the Whole does he be- 
come the father of its several members {dum se quasi 
omnium, collective subiectorum. sibi creaturam cognoscat, 
singulorum. pater existat). The function of making 
laws is by its very nature necessarily reserved for the 
Community, since all the obligatory force of laws 
proceeds from the express or silent consensus of those 
who are to be bound. Therefore the Ruler also is 
bound by the laws. He only receives iurisdictio and 
administratio within the scope of his mandate. Even 
in his jurisdiction and administration he is subject to 
constant supervision, and, in case he transgresses the 
limits of his power, he may be judged and deposed 
by the People. And all this is imprescriptible and 
inalienable Right bestowed by the law of God and 
Nature'^ 
Popular In similar fashion throughout the fifteenth century 

fte'prin-° i^^ ^ the theoretical arguments by which men strove 
Popular *° defend the rights of ' the Estates ' against the grow- 
Sovereign- j^g might of Monarchy, frequent recourse was had to 
the People's Sovereignty as to a first principle '", until 
y that principle, assuming a popular form, penetrated 
more and more deeply the masses of the folk, and at 
length took flesh and blood in the revolutions which 
were accomplished or projected during the Age of the 
Reformation. 



The Idea of Popular Sovereignty. 49 

2. Meanwhile thoughts similar to those which had Popular 
been developed in relation to the State had exercised tyTn'thf 
a decisive influence within the Church. More and ^''"'^'='^' 
more distinctly and sharply men were conceiving the ^ 
Church as ' a Polity,' and it was natural therefore that 
in the construction of this Polity they should employ 
the scheme of categories which had in the first instance 
been applied to the temporal State. Indeed in the end 
the Church was regarded as charged with the mission 
of realizing the ideal of a perfect political Constitution. 
Thus, besides the transmutation of the specifically 
ecclesiastical ideals, we may see, in this quarter also, 
the well-marked evolution of a ' nature-rightly ' Doctrine 
of the State. 

A definition which declared the Church to be Right of 

the ccclc' 

' the Congregation of the Faithful ' was not to be eradi- siasticai 
cated, and therefore the doctrine of absolute monarchy, mMity. 
even when at its zenith, was powerless utterly to 
eliminate the idea of a right vested in the ecclesiastical 
Community taken as a Whole. However loud might 
be the tone in which men asserted that the Pope stood 
above the rest of the Church, had no ' Superior,' and 
therefore could judge all and be judged of none {sedes 
apostolica omnes iudicat et a nemine iudicaiur) : that 
the Senate of Cardinals, which was always more com- 
pletely supplanting the Assembly of Bishops, had 
acquired all its powers merely from the Pope and 
not from the Church : that even a General Council 
stood below the Pope, obtained from him authority to 
assemble and decide, and could neither bind him nor 
confer authority upon him "^ : none the less, there were 
two points at which a breach of these principles could 
not be avoided or could with difficulty be excused as 
a merely apparent breach. For one thing, the election 
of a Pope was always recalling the idea that when the 



50 Political Theories of the Middle Age. 

see was vacant the power of the Pope reverted to the 
Community, and that therefore the Cardinals, as repre- 
sentatives of the Community, chose a new Monarch "*. 
Secondly, the doctrine, hardly doubted in the Middle 
Age, that in matters of faith only the Church is 
infallible, and that the Pope can err and be deposed 
for heresy "°, led to the opinion expressed by many 
canonists that in this exceptional case the Pope is sub- 
jected to the judgment of the Whole Church {iudicaiur 
a tola ecclesia, condemnatur a concilio generali, iudi- 
catur a subditis, ab inferioribus accusari et condemnari 
potesty". It makes no practical difference if, in order 
to conceal this breach with the principle of Absolute 
Monarchy, men invent the fiction that an heretical 
Pope, being spiritually dead, has ipso facto ceased to be 
Pope, and that the General Council has merely to 
declare this accomplished fact in the name of the 
Church, of which it has become the sole representa- 
tive"'. 
Supre- If then in this manner a certain Supremacy of 

macyofthe _, ., _ .,,..,„ , . 

Council. Council over Pope was still incidentally recognized by 
the existing Law of Church, a theoretical explanation 
and justification of this Supremacy would soon be forth- 
coming. The doctrine that as a general rule the Pope 
is above the Universal Church, but in matters of faith 
is subject to it and to the Council that represents it, 
had hardly ever died out'™. But if the divine character 
of the Pope's right to rule was compatible with his 
subjection, even at a single point, to the Church, then 
it appeared possible that, without abandonment of the 
old and general principle of Papal Supremacy, other 
points might be found at which, by way of exception, a 
right of the Whole Body might be made good against 
j its Head. As a matter of fact, there soon were some 
»who taught that the Conciliar Jurisdiction over the 



The Idea of Popular Sovereignty. 51 

Pope extended to cases of notorious crime, of schism </ 
and of other evils which threatened the welfare of the 
Whole Church"^ Moreover, the legal doctrine of acts j 
dictated by necessity was developed in such a manner i 
as to justify in urgent cases an extraordinary procedure j 
on the part of the Whole Church without the Pope and 
against the Pope"". 

Howbeit, from the beginning of the fourteenth Sovereign- 
century an ever more triumphant doctrine pressed ecciesiasti- 
forward towards a bolder statement of the case. Re- munity. ^ 
lying now on those speculative constructions of Society 
which were supposed to have the warrant of Natural 
Law, and now upon the Positive Law touching Corpo- 
rations, it transferred to the Church that theory of 
Popular Sovereignty which had been elaborated for 
the State, and in the end it declared in favour of the 
full Sovereignty of the Universal Church as repre- 
sented by a Council. 

Already John of Paris saw in the Pope only the Council 
corporative Head of the Community, related to it ^" °^' 
merely as every prelate was related to his own ecclesi- 
astical corporation, having only such powers of govern- 
ment as were necessary for the preservation of unity, 
and, if he transgressed against the common weal, liable 
to be admonished by the Cardinals and deposed by 
a Council"^ But, at this point also, Marsilius of Padua 
outstripped all his contemporaries. Contesting the 
divine origin of the Primacy, he saw the Unity of the 
Visible Church under its Invisible Head represented 
only by a Council, while to the Roman Bishop, who 
was to be elected, corrected, deposed by the Council, 
he allowed no other functions than that of requesting 
the Temporal Power to summon a Council, that of pre- 
siding in it and laying proposals before it, that of 
recording and publishing its resolutions, and that of 



52 Political Theories of the Middle Age. 



threatening transgressors with purely spiritual cen- 
sures"'. And then all the propositions which flowed 
from the Sovereignty of the Whole were deduced and 
stated in elaborate detail by William of Ockham. They 
were propositions which theretofore had only been 
maintained in isolation from each other, and it was left 
for the extremes! champions of Councils against Popes 
to raise them to the level of a practical programme. 
Ockham marshalled all the doubts concerning the 
divine origin of the Papal Primacy : doubts which 
thenceforth grew always louder'^. He discussed the 
question whether the Church can not freely determine 
its own Constitution and perhaps wholly abolish the 
monarchical form^**. He explained the Election of 
Popes as the exercise of a right delegated to the 
Cardinals by the Community ^^. In no circumstances 
would he concede to the Pope more than a limited 
power'**, while to a General Council he ascribed the 
power of binding him by its resolutions, of sitting in 
judgment upon him, of deposing kim, and of relin- 
quishing him to the temporal arm for punishment**. 
Lastly, he maintained that in case of necessity a 
Council might assemble without papal summons and 
by virtue of its own inherent power*^. 
Theories This doctrine of the Sovereignty of the Ecclesias- 

Conciiiar tical Community had already been fully developed 
when the writers of the great Conciliar Age, though at 
some points they tempered it, erected it as a system 
and made it an official programme at Pisa and Con- 
stance and Basel. For d'Ailly, Gerson, Zabarella, 
Andreas Randuf, Dietrich of Niem and some of their 
contemporaries, the whole Constitution of the Church 
was based on the thought that the plenitude of eccle- 
siastical power was in substance indivisible and inalien- 
able, and was vested in the Universal Church repre- 



Party. 



The Idea of Popular Sovereignty. 53 

sented by the Council, while the exercise of that power 
belonged to the Pope and the Council in common"'. 
When the various writers attempted more precisely to 
define the relationship of Pope to Council, there were 
many variances between them ; but on the whole they 
are agreed in ascribing to the Pope the ordinary exer- 
cise of a supreme and monarchical power of govern- 
ment, and to the Council a more aboriginal and a fuller 
power which is to be employed in regulating, correct- 
ing, and, if need be, overruling the papal govern- 
ment™. Therefore in the most important acts of 
Rulership the co-operation of the Council was requi- 
site. The Council should rectify abuses of the Pope's 
power and might have to judge him, depose him and 
even inflict corporal punishment upon him'^\ In order 
to exercise these powers, it might assemble itself and 
constitute itself without the Pope's permission and 
against his will, though in the normal course it should 
be summoned by himT During a vacancy of the see, 
its suppletive power {potestas suppletiva) put it in the 
place of the missing Monarch, and then by itself or its 
vicars {^per se ipsum vel per organum aliquod vice 
omnium) it could exercise his rights of government"'. 
In principle the election of a Pope belonged to the 
Council as representing the Whole Church, and when 
the Cardinals, as was the regular practice, performed 
this function, they were but representatives of the 
Council'". Attempts, however, were often made to 
give to the College of Cardinals an independent posi- 
tion as a third organ of the Church, intermediate be- 
tween Pope and Council"'. Gerson and d'Ailly even 
believed that in this fashion the ideal of a Mixed 
Constitution, compounded of the three * good polities ' 
of Aristotle, could be realized in the Church, since the 
Pope stands for Monarchy, the College of Cardinals 



54 Political Theories of the Middle Age. 

for Aristocracy, and the Council for Democracy |". In 
truth, however, notwithstanding apparent variations, 
we see in the works of all these writers a full Sove- 
reignty of the Council as the representative of the 
Whole Community. In the last resort all other eccle- 
siastical powers appeared as mere delegations from the 
Sovereign Assembly : an Assembly whose resolutions 
were unconditionally binding on the other organs of 
the Church : an Assembly which, in case of collision, 
was the sole representative of the Church and indeed 
stood 'above' the Pope'". The Law of God, which 
set bounds to every power, was, it is true, a limit, 
though it was the only generally recognized limit of 
the Council's omnipotence. Gerson, who accepted the 
divine origin of the Monarchical Constitution of the 
Church, held therefore that the Papacy, when regarded 
as an Institution, was unassailable even by the Coun- 
cil™, while other writers, who suppose a merely histo- 
rical origin for the Primacy, would allow the Council 
to modify the monarchical regimen or even to abolish 
it'". 
Theory of It is, however, Nicolas of Cues who in the most 
many-sided fashion carries out the principle of Popular 
Sovereignty in the Church'"". For him that principle 
was an imprescriptible rule of Divine and Natural 
Law and he maintained a complete parallelism between 
Church and State. The 'subject' of Church- Right 
was in his eyes the Whole Body which alone had 
received a mandate from God (i. c. 12 — I'j^ This was 
true of the Universal Church as well as of the Particu- 
lar Churches. In the Church therefore, as in the 
State, all superiority was founded on consent and 
voluntary submission (11. c. 13 — 14). True it was, 
that God co-operated with man in the institution of 
Ecclesiastical Powers and that all Ecclesiastical Power 



i 



The Idea of Popular Sovereignty. 55 

was from God (11, c. 19); but it was only the Grace 
that was bestowed immediately by God ; the Coercive 
Force was bestowed by means of a human and volun- 
tary act of conveyance (ir. c. 34), and the divine right 
of every office, even of the Primacy, had no other 
character than that borne by every Temporal Magis- 
tracy (i. c. 16; II. c. 13, 34). The medium whereby 
definite form was given to that expression of the 
General Will, that communis consensus, which in all 
the various zones of government was necessary for the 
conveyance of power, was Election (11. c. 14, 18 — 19). 
By Election were ordained the overseers of the 
smaller and larger governmental districts, parsons, 
bishops, metropolitans, patriarchs, who thenceforth 
represented the Communities of their respective dis- 
tricts, and who when they assembled in Council stood 
as a visible presentment of their particular churches 
and moreover of the Universal Church (11. c. i, 16 — 
19). Therefore the authority of Councils, whatever 
their degree, proceeded, not from their Heads, but from 
'the common consent of all' (11. c. 8, 13). For this 
reason the General Council, since it stood for the 
infallible Church (11. c. 3 — 7), was above the Pope 
(11. c. 17 — 34) and was not dependent on his authority 
(11. c. 25), could in case of necessity assemble of its 
own motion, and could transact business without him 
(11. c. 2, 8). By virtue of the representative character 
given by Election, Councils could exercise the power 
of legislation, for, since all the binding force of laws is 
based upon the concordantia subiectionalis eorum, qui 
per earn, legem ligantur, and since therefore Papal 
Decretals as well as Provincial Statutes had no source 
save this ' common consent,' it followed that canonical 
ordinances of all sorts acquired their validity either by 
the tacit acceptance that is implied in usage or by the 



56 Political Theories of the Middle Age. 



express consent of the Community (ii. c. 8 — 12). But 

further, on the Mandate that is implicit in Election 

rested all the jurisdictional and administrative powers 

of the several Prelates. By virtue of those powers 

the Prelates were the Heads of the Communities 

and the presidents of the communal assemblies, but 

they were bound by the resolutions of those assemblies 

and were responsible to those assemblies for the due 

exercise of entrusted offices (11. c. 2, 13 — 15). And no 

other was the case of the Supreme Head of the Church 

Universal. He too held his place by Election, an 

Election performed by the Cardinals nomine totius 

ecclesiae. And, albeit the Power of God entered into 

the act, authorizing and confirming it, still the Pope 

owed his position to the voluntary submission of the 

Church Universal. Therefore his only power consisted 

of the ' administration and jurisdiction ' which had been 

conveyed to him (11. c. 13 — 14, 34). So the Pope was 

bound and confined by laws (11. c. 9 — 10, 20). Like the 

King, he was higher than any one of the People, but 

of the whole People he was the servant (u. c. 34). 

His relation to the General Assembly was that of a 

Metropolitan Bishop to the Provincial Council (11. c. 

12): by it he could be judged and deposed (11, c. 17 — 

18). For all this, however, Nicholas of Cues, like 

Gerson, regarded this monarchical culminating-point as 

an essential and divinely decreed part of the Church's 

Constitution (i. c. 14). Also he endeavoured, as did 

some others, to interpolate between the democratic 

groundwork and the monarchical head an aristocratic 

element, which in the case of the Universal Church 

consisted of the Cardinals regarded as provincial 

delegates, and in the case of the Particular Churches 

consisted of the Chapters (11. c. 1 5). Then he strove 

to institute a constitutional link between this Ecclesi- 



The Idea of Popular Sovereignty. 57 

astical Constitution and the parallel Constitution of the 
Empire. On the one hand, the temporal rulers in 
their several provinces and the Emperor in the Whole 
Church were to manifest their care for the Church by- 
summoning Councils and voting in them (iii. c. 8 — 

11, 13 — 4), while, on the other hand, the clergy were 
to take part in the Assemblies of the Empire and of 
its component territories. To these 'mixed' assem- 
blies — partly ecclesiastical and partly temporal — power 
to deal with ' mixed ' affairs was to be ascribed (iii. c. 

12, 25, 35). 

Upon this same notion of a Sovereignty given by Reaction 
Natural Law to the Community, Gregory of Heim- PopuL 
burg, Almain, Aeneas Sylvius in his earlier days, and ^overeign- 
some later writers constructed their doctrine of Eccle- 
siastical Law™. Those Canonists also who were friendly 
to the Councils advocated the less extreme proposi- 
tions of this system and at the same time paid heed 
to the Law of Corporations '^^ Even the constitutional 
theory of Antonius Rosellus, albeit strongly monarchi- 
cal and based on Positive Law, was permeated by the 
thought of a Popular Sovereignty within the Church'"'. 
Therefore the earliest scientific reaction in favour of the 
Papacy, a reaction in which Torquemada was a leader, 
began with the negation of the principle of Popular 
Sovereignty, and indeed denounced that principle as 
radically false and impossible™. 

The constitutional doctrine of the Church thus Rights of 

TVT 1 1 *"^ Laity 

underwent violent disturbances. Nevertheless one in the 
important consequence of the principle of Popular 
Sovereignty remained undrawn or but partially drawn. 
The Conciliar Movement did not bestow any active part 
in the affairs of the Church upon the Laity. At the 
utmost the theorists would allow a secondary or sub- 
ordinate place to the Temporal Magistrate. Thus the 



58 Political Theories of the Middle Age. 



exclusive right of the Clergy was not attacked '°'. 
Indeed Gerson held fast an extremely 'institutional' 
idea of the Church [i.e. an idea that the Church is 
rather an Institution than a Fellowship], for he defined 
the Church Universal in its active potency as the sum 
total of those essential offices which have been founded 
by God''". And, if upon the other side the Consti- 
tution of the Church as a Fellowship was loudly 
proclaimed and all ecclesiastical power was reposed in 
the Congregation of the Faithful, all inferences in 
favour of any active rights of the Laity were excluded 
by the supposition that every Congregation was per- 
fectly and absolutely represented by the Clerical 
CounciP"'. 
The Still even at this point the Reformation was not 

M^agi^trate wholly without medieval precursors. The idea of the 
sentat[ve general Priesthood of all the Faithful was never quite 
°^^ unrepresented, and also there were some who made 
the communal principle a foundation for the theoretic 
construction of the Church's constitution. What is 
most remarkable in this context is that the theories 
which went furthest in this direction finally issued in 
the introduction of the Temporal Magistrature into 
the Church, for instead of postulating an independent 
organization of the Ecclesiastical Communes [parishes 
and the like], men were content to suppose that these 
were represented by the constituted political powers. 
Marsiiius Above all Others it is Marsilius in his Defensor 
Laity. Pacis who pictures the Church as a Corporation of the 
Faithful {universitas fidelium) wherein the Laity, — for 
in truth they are Churchmen (vin ecclesiastici), — are 
active members. Between Spiritual and Temporal the 
difference was not ' personal ' but 'real' (ii. c. 2). The 
Clergy were distinguished from the Laity by the 
Priesthood. This, however, was merely a peculiar 



The Idea of Popular Sovereignty. 59 

faculty of a spiritual kind, and bestowed no external 
coercive power and no exceptional right of an admini- 
strative or jurisdictional sort (11. c. 3 — 10; iii. c. 3, 5, 
13 — 14), Therefore the full powers entrusted by God 
to the Community of the Faithful were to be exercised 
by a General Council (11, c. 7, 18, 20, 22), which was to 
be constituted by all the Faithful, including the Laity, or 
their Deputies (11. c, 20 ; iii.c. 2). However, as repre- 
sentatives of the Body of the Faithful, the legislator 
humanus and t)\& principans were to act : in other words, 
the Assembly of the People and the Temporal Ruler. 
Upon them, therefore, lay the duty of summoning the 
Council, deciding who were its members, controlling and 
closing its deliberations, and executing its resolutions 
by force and punishment (11. c. 28, 21; iii. c. 33). 

Yet more extensive riofhts were challenged for the Ockham 

° r , . . , 1 and the 

Laity by Ockham. He starts from the prmciple that, Laity. 
albeit the Canon Law would narrow the idea of the 
Church until it comprised only the Clergy, none the 
less the Church Universal, being the Congregation of 
the Faithful, must, according to Holy Writ, embrace 
the Laity also {Dial i. 5, c. 29 — 31). Thence he 
argued in detail that, since Infallibility was guaranteed 
only to the Church Universal, the true faith might 
perish in Pope, Cardinals, Roman Church, the whole 
Clergy, all male and indeed all reasonable. members of 
the Church — for one and all they were but parts of the 
Church — and yet might survive in the rest of the 
Church, perhaps in women and babes '^. Therefore even 
the Laity might accuse an heretical Pope, and if they 
had power enough, might punish him {Dial. i. 5, 
c, 30 — 35). So they could summon a General Council 
and themselves take part in it; indeed (though the 
Scholar in Ockham's Dialogue thought this a plain 
absurdity) even women should be admitted, were there 



6o Political Theories of the Middle Age. 



need of them {Dial. i. 6, c. 85). In Ockham's eye a 
General Assembly of this sort was by no means 
impossible. It might, for example, be constructed In 
such wise that within some limited time every Com- 
mune should elect certain delegates, from among whom 
deputies for the Council should be chosen by the 
episcopal Synods or temporal Parliaments. In such a 
Council the Universitas Fidelitim would in fact be 
present in the persons of its representatives, and such 
a Council, like the General Assembly of any other 
Community or Corporation, would concentrate in itself 
the power of the Whole Body {Dial. i. 6, c. 57, 
84, 91 — 100; Ocio qu. III. c. 8). The only spiritual 
rights and powers {iura spiritualid) from which Ockham 
would exclude the Laity are such as have their origin 
in Ordo or Officium Divinum ; on the other hand, laymen 
are capable of all iura spiritualia which are concerned 
with care for the weal of the Church {propter com- 
munem utilitatem ecclesiae). In particular, according 
to the ius naturale, according to the ius gentium, and 
perhaps according to the ius divinum, laymen are 
entitled to take part in the election of bishops and 
popes, and are excluded merely by temporary ordi- 
nances of human origin. Their ancient right becomes 
valid once rtiore if there be any defect in the agency 
which positive law has put in their place. Thus in 
case of the heresy, the schism or the culpable delay of 
the Cardinals, the right to elect a Roman bishop lies, 
as a matter of principle, in the Romans, without dis- 
tinction between Clergy and People, or else it lies in 
all Catholics""'. However, the actual use of this right, 
as of other rights pertaining to the Whole Community, 
Ockham made over to the Emperor ' Roman and 
Catholic/ who, as the Community's Christian Head, 
might act vice omnium, in the name of and under 



The Idea of Representation. 6i 

a commission from All, and more especially the 
Romans^". And thus Ockham, like others, introduces 
the Temporal Magistrate into the Church as the repre- 
sentative of the Laity"". 



VII. The Idea of Representation. 

To this lively controversy concerning the rights The 
of Rulers and the rights of Communities, medieval sentatjve 
doctrine owes the idea of a State with Representative tution. 
Institutions. It was admitted on all sides that the , 
main object of Public Law must be to decide upon the 
Apportionment of Power, and, this being so, every 
power of a political kind appeared always more clearly 
to bear the character of the constitutional competence 
of some part of the Body Politic to ' represent ' the 
Whole. It became evident therefore that a theoretical 
severance must be maintained between the individual 
personality and the social personality of every human 
wielder of power, between his own right and his 
public right, between the private act which affected 
only the individual and the official act which by 
virtue of the Constitution bound the Whole Body*. 
At all these points the Doctrine of the State co- 
incided with the Doctrine of the Corporation, and 
therefore in this quarter the Publicist had often no 
more to do than simply to borrow the notions which 
had been elaborated by the Jurists in their theory of 
Corporations. 

In the first place, medieval doctrine gave to the Repre- 
Monarch a representative character. However highly character 
his powers might be extolled, the thought that Lord- archy." 

* In other, and to Englishmen more familiar, words, 'private capacity' and 
'politic capacity' were to be distinguished. — Transl. 



62 Political Theories of the Middle Age. 



ship is Office had, as we have already seen, always 
remained a living thought. Pope and Emperor stood 
for this purpose on a level with any president of a 
corporation. Therefore, though it was conceded on all 
hands that the Ruler might have a vested right, and a 
right that was all his own, in his Lordship, still with 
equal unanimity men saw as the content of this right 
merely a call to the temporary assumption of an im- 
mortal dignitas, and in the concept of that dignitas the 
functiofi of the Ruler was objectified as a constitution- 
ally defined sphere of power *'"^. 
Politic So it was as the bearer for the time being of a 

capacity. ^^^^^^^^^ dignity, and not as this or that individual, 
that the Monarch was to exercise the rights and dis- 
charge the duties of Lordship. And within the scope 
of the powers constitutionally assigned to him, he, as 
Head, represented the Whole Body, Therefore it was 
generally agreed in the Church that, as the Prelate is 
not the Particular Church, so the Pope is not the 
Universal Church, but merely represents it by virtue 
of his rank (intuitu dignitatisY^ . The only question 
for dispute was whether, as a general rule, he by 
himself represented the Whole Body''", or whether (as 
was the case of the president of a Particular Church) 
his representative power was confined within certain 
limits, while for a complete representation men must 
look to a Council™. So again, notwithstanding all 
disputes touching the extent of a Monarch's power, all 
were agreed that the Emperor was not the Empire, 
but only, by virtue of his rank, represented the Empire 
and the Community that was subject to him"°. The 

* Thus, for example, in our English legal doctrine, lordships, dignities, offices, 
were ' objectified ' as ' incorporeal things,' or incorporeal ' objects ' of rights, and 
these things were supposed to endure while their possessors came and went. In 
such ' things ' men might have vested rights, but the things themselves were con- 
ceived as constitutionally allotted portions of public power. — Transl. 



The Idea of Representation. 63 

like was the case of every Ruler, whether elective or 
hereditary""*. This being so, endeavours were made 
with increasing success to formulate in theory and 
effect in practice a distinction between the public and 
private capacities of the Monarch"', between his private 
property and the State's property which was under his 
care""', between those private acts of his which only 
affected him as an individual and those acts of govern- 
ment which would bind his successors'^". In this 
instance the Church might serve as a model for the 
Empire and the State, for within the Church distinc- 
tions of this kind had long been observed. \ 

Then, on the other hand, it became apparent that Represen- 
the powers ascribed to the Community of the People Assem- 
were not the private rights of a sum of individuals, but 
the public right of a constitutionally compounded 
Assembly. Even the advocates of an inalienable 
Sovereignty of the People did not identify the Whole 
with the mere Body of the State, for beside the Body 
there was a Head with rights of its own. They 
declared at the outset that in all cases it was 'collec- 
tively' and not 'distributively' that the Community was 
entitled to exercise supreme power'^"*. Therefore a line 
was to be drawn between the individual and the social 
capacities of men^. It was not the individual man as \ 
such, but the fully qualified citizen, the 'active burgher,' 
as distinguished from mere 'passive burghers,' who 
was entitled to participate in the powers that were 
ascribed to the Community"^. Even those citizens 
who could vote were thought of, not as an undifferenti- 
ated mass, but as an articulated whole, whose compo- 
sition was affected by differences of rank, of profession 
and of office"^. The exercise of the Popular Sove- 
reignty or of any other right of the Community was 
possible only in a properly constituted Assembly, and 



64 Political Theories of the Middle Age. 



if and when all formalities had been duly observed'^'. 
In this context the rules of the Common Law touching 
the resolutions of Corporations were bodily transferred 
to Ecclesiastical and Political Assemblies. In par- 
ticular, during the Conciliar Age when questions of 
ecclesiastical polity were under discussion — questions 
about the summons to councils'^, their power of passing 
resolutions''', the rights of majorities''', the mode of 
reckoning a majority"' — the rules of Corporation Law 
were called into play. So also its rules concerning the 
prevalence of the majority were applied to acts of 
Political Bodies, and it was in the very words of the 
Jurists that the majority's power to represent the 
Whole was stated™. Ockham even went so far as to 
transfer the lore of corporate delict [the torts of corpo- 
rations] to the relation between Political Communities 
and that State which comprises all Mankind, in such 
wise that by a formal sentence of the Corporation of 
All Mortal Men (universitas mortalium) a guilty 
Nation might be deprived of any preeminence that it 
had enjoyed and indeed of all part and lot in the ruler- 
ship of the World-Community'^'. 
Repre- ' But, more particularly, to the Law of Corporations 

andrepre- ^6 may tracc the endeavour to give definite legal shape 
Assem- ^° ^'^^ '^^^ °^ *^^ cxercise of the rights of the People 
biies. by a Representative Assembly which had long been 
' current in the Middle Age, though unknown to 
Antiquity. Whenever to the right of the Ruler there 
\ was opposed a right of the Community — were this 
right superior to his or were it subordinate — the possi- 
bility that the right of the Community would be 
exercised by means of an Assembly of Representatives 
was admitted. Indeed in all cases in which either 
a gathering of the whole people was out of the ques- 
tion, owing to the size of the Community, or the 



The Idea of Representation. 65 

business in hand was not suited to a General Assembly, 
representative action appeared not only as a possibility 
but as a necessity. When put into a precise form, the 
idea was that the Representative Assembly stood in 
the stead of a Represented Assembly of All, so that 
the acts of the Representing had exactly the same legal 
effect as the same acts of the Represented Assembly 
would have had. Within the ecclesiastical sphere it 
was on this principle that men based the action of 
Councils, and especially it was from this principle that 
were deduced the claims which were asserted on behalf 
of a General Council. Such a Council, it was said, 
represented in a perfect and all-sufficing manner the 
Community of all the members of the Church, in which 
Community were vested those rights that the Council 
exercised^l A prevailing opinion attributed to this 
representation a character so perfect that we might call 
it ' absorptive,' so that, though there might be a distinc- 
tion in idea, there was no distinction in power between 
the Council and the Universal Church or Congregation 
of the Faithful. On the other hand, an opinion which 
Ockham stated argued conversely that because the 
Council's position was purely representative, some limit 
must be set to its power in relation to the congregatio 
fidelium^. Then when the representative character of 
the Council was to be explained, it was usual to refer 
to the fact that it was composed out of the elected 
Heads of the various ecclesiastical Communities. Each 
of these prelates might be supposed to have received at 
his election a mandate to represent the Community 
that was subject to him"". In Ockham's works we may 
see even the idea of a General Assembly of Deputies 
elected, not without the participation of the Laity, 
to represent all and singular the ecclesiastical com- 
munes '°'. 

M. 5 



sentation 
and ' 
tion. 



66 Political Theories of the Middle Age. 

Repre- In exactly the same fashion the various Assemblies 

and' Eiec- of Estates of larger or smaller territories were regarded 
as Representations of the People empowered to exer- 
cise the People's Rights"'". In this case also the 
representative character was supposed to be derived 
from the mandate given by Election : an Election 
which every section of the People had made of its 
own Rulers, but an Election which perhaps had con- 
ferred an hereditary right upon some race or some 
house''''. On such foundations as these Nicholas of 
Cues erected a formal system of Representative Parlia- 
mentarism. It is true that in this early specimen of 
that system we see no mechanically planned electoral 
districts, and the constituencies are organic and corpora- 
tively constructed limbs of an articulated People ; still 
the Assembly stands for the Whole People in uno 
compendio repraesentativo"^. In a similar sense, at an 
yet earlier time, Marsilius of Padua had declared 
in favour of an elective representation of the People, 
but, in his consistent Radicalism, reserved the exercise 
of the rights of Sovereignty, properly so called, for a 
primary or immediate Assembly'*'. 
Repre- Then a representative function of a more limited 

character kind was ascribed to the small collegiate bodies which, 
dinak and with Certain powers of their own, stood beside the 
Electors. Monarchical Head : for instance, the Electors in the 
Empire and the Cardinals in the Church. Leopold 
von Babenberg was the first to ascribe — but in this he 
had many followers — the peculiar rights of the Electors, 
and more especially that of choosing a Kaiser, to a 
representation by them of the whole Folk of the 
Empire : a right belonging to the People was exercised 
by its representatives'". So likewise the Cardinals, 
when they chose a Pope or participated in other acts of 
Sovereignty, were looked upon as representatives of 



TPie Idea of Representation. 67 

the ecclesiastical Community '^\ It is in just this con- 
text that we see the first development of the principle 
that every set of men which is a representation of an 
universitas (corporation) must itself be treated as an 
universitas. The surrogate or substitute, so men 
argued, takes the nature of that for which it stands. 
Therefore Representatives, who in the first instance 
are charged with the representation of the several 
particular communities which compose a People, must, if 
they are to represent the People a-s a Whole, act as 
one single Assembly which resolves and decides in 
a corporate fashion, and, in the absence of any special 
provisions for its procedure, ought to observe the rules 
of the Common Law of Corporations. It was on this 
ground that Imperialistic Publicists, from the days of 
Leopold von Babenberg onward, defended, against the 
contrary opinion of some Canonists, the thesis that the 
rules of Corporation Law were applicable to the form 
and the effect of the choice of an Emperor by the 
princely Electors'^. That those rules were applicable 
to the choice of a Pope and to all other joint acts of the 
Cardinals was indubitable'^. 



VI II. The Idea of Personality. 

After all that has heretofore been said, we might Person- 
well expect that the Political ' Theories of the Middle church 
Age would have laid great stress on the application to n"t theo-* 
Church and State of the idea of Personality, and by so J^^^^'^ 
doing would have both enriched that idea and deepened 'at^d. 
it. The notion of the merely representative function 
of all the visible wielders of public power would 
naturally lead onwards to the notion of a represented 
and invisible 'Subject' of rights and duties. The 

S— 2 



68 Political Theories of the Middle Age. 



Doctrine of Corporations, which was so often cited in 
this context, was ready to supply the idea of a Juristic 
Person, and a due consideration of the nature of Church 
and State might have induced a transmutative process 
which would have turned the Persona Ficta of pro- 
fessional jurisprudence into the concept of a really 
existing Group- Personality [Gesammtpersonlickkeit). 
Already the Church was conceived, and so was the 
State, as an organic Whole which, despite its compo- 
site character, was a single Being, and the thought 
might have occurred that the Personality of the Indi- 
vidual consists in a similar permanent Substance within 
an Organism. 
Failure of Nothing of this sort happened. The professional 
Sieory!'' lawycrs of the Middle Age, it is true, were already 
operating with the ideal ' Right-Subjectivity ' of Church 
and State, and sometimes their operations were by no 
means wanting in precision ; but the instrument that 
they were using was merely their ' Fictitious Person,' 
an instrument forged in the laboratory of Private Law. 
On the other hand, the Publicists, properly so called, 
of the Middle Age hardly ever — and this is highly 
remarkable — make any direct use of the idea of 
Personality in their theoretical construction of the 
Body Social, and, when they make an indirect use of 
it by accepting its results, they become the dependent 
followers of Legists and Canonists. At this point we 
may see the beginning of a stream of tendency which 
has not ceased to flow even in our own day. On the 
one part, the concept of Legal Personality was confined 
always more definitely within the boundary of Private 
Law and became always more arid and sterile. On 
the other part, the Theory of the State had at its com- 
mand no instrument which would enable it to put into 
legal terms the organic nature of the State, and thus 



The Idea of Personality. 69 

was driven to mechanical construction on a basis pro- 
vided by the Law of Nature. 

We have seen above that the Canonists resrarded Jurists and 

° the State s 

not only each Particular Church but also the Church Person- 
Universal as a corporate Subject of Rights'^, and that ^ ' ^' 
the Civilians simply subsumed Empire and State under 
the concept of Corporations"". Baldus, in particular, 
formulated with much precision the thought of the 
State's personality. Thus he explained that the acts 
of a Government are binding on its successors because 
the real Subject of the duty is the State's Personality. 
The Commonwealth, he said, can do no act by itself, 
but he who rules the Commonwealth acts in virtue of 
the Commonwealth and of the office which it has con- 
ferred upon him. Therefore in the King we must 
distinguish the private person and the public person. 
The person of the King is the organ and instrument 
of an 'intellectual and public person'; and it is this 
intellectual and public person that must be regarded as 
the principal, for the law pays more regard to the 
power of the principal than to the power of the organ. 
So the true subject of the duty created by an act of 
the Government is the represented Commonwealth 
(ipsa respublica .repraesentatd) which never dies, and 
a subsequent Ruler is liable in its name''*'. However, 
Baldus is the very man who lets us see clearly that 
he regards the State's Personality merely in the light 
of the prevalent ' Fiction Theory ' of the Corporation. 
This appears plainly from his refusal to attribute Will 
to the State. For this reason he holds that jurisdiction 
delegated by the Prince ceases at the death of the 
delegator. If Gulielmus de Cuneo has argued to the 
contrary, urging that the Empire continues to exist 
and therefore that the delegator is not dead, he has 
(so says Baldus) overlooked the fact that here we have 



70 Political Theories of the Middle Age. 

to do, not with the Empire, but with the Emperor ; 
for, be it granted that the Empire remains unchanged, 
still the Will which is expressed in the act of delegation 
is the Emperor's, not the Empire's, for the Empire has 
no Mind and therefore no Will, since Will is mental. 
ijmperium non habet animum, ergo non habet velle nee 
nolle, quia animisunt!) Will is matter of fact; and mere 
matter of fact, as distinguished from matter of law, 
we cannot thus transfer from Emperor to Empire^'. 
Reasons If therefore the Publicists when they had occasion 

for 'he . . , , 

failure to to employ the concept of an ideal Person had only at 
State's ^ their disposal this ' Fictitious ' Person that the Jurists 
ai"y°"" had fashioned, we may easily understand that, at the 
critically decisive points in the discussion of questions 
touching the whereabouts of the State's Power, the 
Publicists altogether refrained from speaking of the 
State's Personality, The rights that lay debatable 
between Ruler and Community were being ever more 
definitely brought within the growing idea of Sove- 
reignty, and, this being so, a merely Artificial and 
Fictitious Person became an ever less competent ' Sub- 
ject ' for such rights. Moreover, in the controversies 
about the partition and limitations of Public Power 
men felt little need to penetrate beyond the visible 
wielders of that Power. And above all, the Doctrine 
of the State which prevailed in Classical Antiquity 
identified the State, when considered as a Subject of 
Rights and Duties, with its visible Sovereign, and this 
antique Doctrine was becoming the starting-point for 
theorists. 

State's -^"^ ^° '' '^^^ °"^ ^^^ ^^^" i" medieval theory we 

Person- may already see that the single Personality of the 

divided. State is torn asunder into two 'Subjects' corresponding 

respectively to the Ruler and the Assembly of the 

People. Between them there is a conflict as to which 



The Idea of Personality. 71 

has the higher and completer right ; but they are 
thought of as two distinct Subjects each with rights of 
a contractual kind valid against the other and with 
duties of a contractual kind owed to the other ; and in 
their connexion consists the Body Politic. 

In so far as the Ruler was the 'Subject' of the The 
State's power, the notion of a personified Dignitas Person- 
enabled men to separate, both in the ecclesiastical and ^ ''^" 
in the temporal groups, the rights which belonged to 
the Ruler as Ruler from those which belonged to him 
as an individual man"^ But thereby an expression for 
the Personality of the State as a Whole had not been 
gained, for in the State there was a place also for the 
Community as distinguished from the Ruler. Rather 
we must say that within the State a separate Ruler- 
Personality [such as the English ' Crown '] was con- 
structed. This Ruler-Personality would outlive the 
various Rulers who from time to time were invested 
with it ; it endured in the shape of a personified Office. 
However, in a Monarchy, so long as the throne was 
occupied, this Personality was absorbed by the visible 
occupant'^, and in a Republic it took body in the 
Assembly which exercised the rights of Sovereignty : 
an Assembly which was pictured in visible form as 
a living Collective Ruler^°. 

And then on the other hand, in so iar as the Com- The ^ 
munity was a ' Subject ' of rights, and stood apart from Person- 
and either above or below the Ruler, this ' Subject ' ^ *^' 
could not be identified with the Whole organized and 
unified Body, since the Head was being left out of 
account. Rather a separate 'Subject' was made of 
'the People': a 'Subject' that could be contrasted 
with 'the Government*.' Then it is true that the 

* Thus at a later day King James II. was conceived to have broken a contract 
made with, not the State, but 'the People.' — Transl, 



72 Political Theories of the Middle Age. 

People when thus conceived was personified in the 
guise of an universitas and could be distinguished from 
the individuals that were comprised within it'^^; but, 
the impulse towards an organic construction having 
been repressed, men were steadily driven onwards to a 
mode of thought which explained the right-possessing 
universitas to be in the last resort merely a sum of 
individuals, bound into unity by Jurisprudence, and 
differing only from the plurality of its. members for the 
time being in that those members were 'to be taken 
collectively' and not 'distributively.' This mode of 
thought appears in a pregnant fashion among the 
champions of the rights of the Ecclesiastical Commu- 
nity. They simply identify the Universal Church, 
(which is by definition the Universitas Fidelium,) with 
a ' collective ' sum of all faithful people'"'. Torquemada 
therefore could attack the Conciliar Theory at this 
very point. He undertook to prove that the Universal 
Church as defined by his opponents was not even a 
possibly competent wielder of the ecclesiastical power 
that was ascribed to it. For, he argued, a Community 
taken as Whole cannot have rights of which the major 
part of its members are incapable, and of the Faithful 
the major part will consist of women and laymen ; 
besides it would follow that all the members of the 
Church would have equal rights and the consent of all 
would be necessary for every act of Sovereignty'^. 
Similarly in temporal affairs just the most energetic 
champions of Popular Sovereignty regard the Sovereign 
People as the merely collective sum of all individuals^. 
The influence of this ' individual-collective ' explication 
of the idea of the People becomes always more evident 
in the theories that men hold touching the base and 
limits of the representation of the Whole by the 
Majority or by Conciliar Bodies or by the Ruler'^. 



The Idea of Personality. 73 

Thus the path to the idea of ' State-Sovereignty ' The idea 
was barred for medieval theory, and already there were state's 
planted in that theory the germs of those later systems re^gnty is 
of ' Nature-Right ' — the system of Ruler-Sovereignty, '°"'^'^" 
the system of Popular Sovereignty and the system of 
Divided Sovereignty — which endeavoured to construe 
the ' Right-Subjectivity ' of the State now in a cetitral- 
istic, now in an atomistic, but always in a purely 
mechanical fashion. 

Before, however, we turn our attention to these 
modern elements in the medieval doctrine, we must, in 
order to complete our picture, cast a glance at the 
relation and interaction between the idea of the State 
and the idea of Right (Law). 



IX. The State and Law. 

When the Middle Age began to theorize over the The state 
relation of the State to Law, the old Germanic idea of itself from 
a ' Right-State ' [Reign of Law] had already shown its ' ^ 
insufficiency. It was the idea of a State which existed 
only in the Law and for the Law, and whose whole 
life was bound by a legal order that regulated alike all 
public and all private relationships. In the Church 
there had been from all time a Power established which 
found its origin and its goal outside and beyond a mere 
scheme of Law and which might be contrasted with that 
scheme. So also State-Power, so soon as it became 
conscious of its own existence, began to strive for a 
similar emancipation from the fetters of the Law. 
Jurisprudence and Philosophy, so soon as they felt 
the first rustle of the breath of Classical Antiquity,, 
began to vie with each other in finding a theoretical 
expression for an idea of the State which should 



74 Political Theories of the Middle Age. 



be Independent of the idea of Law. Almost unani- 
mously medieval Publicists are agreed that the State 
is based on no foundation of mere Law, but upon moral 
or natural necessity: that it has for its aim the pro- 
motion of welfare : that the realization of Law is but 
one of the appropriate means to this end : and that 
the State's relation to Law is not merely subservient 
and receptive, but is creative and dominant. 
Law above But, notwithstanding: these acquisitions from Clas- 

Stateand ..... . , . , . ^ , 

State sical Antiquity, — for such in their essence they were — 
Law. Medieval Doctrine, while it was truly medieval, never 
surrendered the thought that Law is by its origin 
of equal rank with the State and does not depend upon 
the State for its existence. To base the State upon some 
ground of Law, to make it the outcome of a legal act, 
the medieval Publicist felt himself absolutely bound. 
Also his doctrine was permeated by the conviction 
that the State stood charged with a mission to realize 
the idea of Law: an idea which was given to man 
before the establishment of any earthly Power, and 
which no such Power could destroy. It was never 
doubtful that the highest Might, were it spiritual or 
were it temporal, was confined by truly legal limita- 
tions. 
Natural HoTAj then was it thinkable that, on the one 

Positive hand, Law ought to exist by, for and under the 
State, and that, on the other hand, the State ought 
to exist by, for and under the Law? The thought 
that State and Law exist by, for, and under each 
other was foreign to the Middle Age. It solved 
the problem by opposing to Positive Law the idea 
of Natural Law. This idea, which came to it from 
.Classical Antiquity, it proceeded to elaborate. 
The idea of This is not the place in which to expound the 
Law. medieval doctrine of Nature- Right or Natural Law 



. The State and Law. 75 

or to pursue its evolution through the innumerable 
learned controversies that beset it. The work of de- 
velopment was done partly by Legists and Decretists 
on the ground provided by the texts of Roman and 
Canon Law, and partly by Divines and Philosophers 
on the ground of Patristic and Classical Philosophy. 

' Thomas Aquinas drew the great outlines for the fol- 
lowing centuries. To say more would be needless, for, 
however many disputes there might be touching the 
origin of Natural Law and the ground of its obligatory 
force, all were agreed that there was Natural Law, 
which, on the one hand, radiated from a principle 
transcending earthly power, and, on the other hand, 
was true and perfectly binding Law^°. Men supposed 
therefore that before the State existed the Lex Natu- 
ralis already prevailed as an obligatory statute, and 
that immediately or mediately from this flowed those 
rules of right to which the State owed even the possi- 
bility of its own rightful origin. And men also taught 
that the highest power on earth was subject to the 
rules of Natural Law. They stood above the Pope 
and above the Kaiser, above the Ruler and above the 
Sovereign People, nay, above the whole Community of 
Mortals. Neither statute nor act of government, 
neither resolution of the People nor custom could 
break the bounds that thus were set^; Whatever con- 
tradicted the eternal and immutable principles of 
Natural Law was utterly void and would bind no 
one^'. 

This force was ascribed, not merely to the 7?^^ The Law 
Naturale in the strictest sense of that term, but also Nature', ° 
to the revealed lus Div^inum and to the lus Commune ^a^ji°^g. 
Gentium which were placed alongside of it. The 
revealed Law of God stood to the Law of Nature 
(properly so-called) in this relation, namely, that, while 



76 Political Theories of the Middle Age. 

the latter was implanted by God in Natural Reason 
for the attainment of earthly ends, the former was 
communicated by God to man in a supernatural way and 
' for a supramundane purpose ^. Then the lus Gentium 
(thereby being meant such Law as all Nations agreed 
in recognizing) was regarded as the sum of those rules 
which flowed from the pure Law of Nature when 
account was taken of the relationships which were 
introduced by that deterioration of human nature which 
was caused by the Fall of Man. Since the constituted 
Power in Church and State had not created this Law 
of Nations but had received it, it was therefore held 
to partake of the immutability and sanctity of Natural 
Law"™. 
Limits of The deeper were the inroads that were made into 

Law. the domain of ecclesiastical and temporal legislation 
by this idea of a Law of Nature which even legis- 
lators might not infringe, the more urgent was the 
need for a definition of the principle which set limits 
to a law-giver's power. As to the breadth and import 
of the principle there were abundant controversies. 
But the very elasticity of the limiting idea could in 
all circumstances save the principle. Men agreed that 
the rules of Natural Law could not be altogether 
abrogated by Positive Law, but still those rules 
might be, and ought to be, modified and developed, 
amplified and restricted, regard being had to special 
cases. In this sense a distinction was often drawn 
between the immutable first principles and the mutable 
secondary rules, which might even be regarded as 
bearing an hypothetical character. This distinction 
was applied to the true lus Naturale^, as well as to 
The the lus Divinum^ and the lus Geniium"^", 

Sovereign r 1 • 

above 1 he reverse side of this exaltation of Natural Law 

Law.'^ we may see in the doctrine of the absolute subjection 



The State and Law. 77 

of Positive Law {ius civile) to the Sovereign Power. 
This doctrine, which worked a revolution in the world 
of archaic German ideas, taught that the Ius Civile 
was the freely created product of the Power of a Com- 
munity, an instrument mutable in accordance with 
estimates of utility, a set of rules that had no force of 
their own'^. It follow^ed that in every Community the 
wielder of Sovereignty stood above the Positive Law 
that prevailed therein. Nay, always more decisively, 
men found the distinguishing note of Sovereignty, 
ecclesiastical or temporal, in the fact that the Sovereign 
was not bound by any human law. 

The advocates of Ruler's-Sovereignty identified The 
Positive Law with the expressly or tacitly declared bound by 
Will of the Ruler. They placed the Ruler before and ^^'^' 
above the statutes made by him or his predecessors. 
They taught that he for his part was not bound by 
a statute, but might in every single case apply or break 
it as need might be. Even from the twelfth century 
onwards. Jurisprudence laid stress on those Roman 
texts that made for this result. Thence it might take 
the comparison of the Ruler to a lex animata : thence 
the assertion Quod Principi placuit legis habet vigorem : 
and thence above all a sentence destined to be, from 
century to century, a focus of controversial literature, 
namely, Prinups legibus solutus est. Furnished with 
these, the lawyers could thereout fashion other maxims, 
in particular that which the Popes applied to them- 
selves : Omnia iura habet Princeps in pectore suo. 
Philosophical theory assented. It found the specific 
difference between the true Monarch and the Republi- 
can Magistrate exactly at this point. The latter was 
bound by the laws made by the People or by him and 
the People. The former wandered around as a lex 
animata, and in every single case might modify the 



78 Political Theories of the Middle Age. 



previously existing law by virtue of a word that was 
drawn from him by the concrete needs of the moment^. 
Nor were there wanting men who from this potestas 
legibus soluta would draw absolutistic consequences, of 
which the Pope in the Church and the Kaiser, or 
a little later every Sovereign, in the State would reap 
the profit'"'. 
Positive Against this doctrine a protest was made by all 

thTcom- those writers who ascribed Sovereignty or even a share 
munity. q£ Sovereignty to the People ; and their protest was 
sharply formulated. Whereas the maintainers of 
' Ruler's-Sovereignty ' declared that only in Republics 
were the laws founded on the Will of the People and 
therefore superior to the Magistrate^, the champions 
of the theory which accepted Popular Sovereignty as 
a first principle proclaimed that, no matter what was 
the form of government, the binding force of Statute 
always had its source in the consent of the Community. 
Therefore they would hear nothing of any Ruler who 
was above the laws : no, not though he were Pope or 
Kaiser™'. A separation of the legislative from the 
executive power begins to be suggested at this point, 
and it afterwards becomes of the highest importance in 
the development of the idea of the Reign of Law 
{Rechtsstaaty^. However, what was at issue in the 
first instance was only the whereabouts of Sovereignty, 
and not the relation between Sovereign Power and 
Law, for the one party claimed for the Sovereign 
Assembly, (in Church or State as the case might be,) 
exactly the same superiority to Positive Law which the 
other party granted to the Monarch^. 
Natural Medieval theory therefore was unanimous that the 

Positive power of the State stood below the rules of Natural 
^ ' and above the rules of Positive Law. That being so, 
an analogous distinction had to be drawn in the matter 



The State and Law. 



(29) 



of the State's relation to two classes of Rights and 
Duties. 

— ^ A Right that was conceived to fall within Positive 
Law was regarded as being, like the rule whence it 
flowed, the outcome of a concession made by the State, 
\ and was subject to the Sovereign's disposal. Men did 
jnot allow that a vested right, if acquired by a title 
I derived from Positive Law, could as a matter of 
I principle be valid as against the Power of the State. 

Already, as is well known, the jurist Martinus Eminent 

domain. 

[circ. 1 1 50] ascribed to the Emperor a true ownership 
of all things, and therefore a free power of disposal 
over the rights of private persons. He relied in 
particular on some words in the Code (c. 7, 37, 1, 3): 
quum omnia Principis esse intelligantur. On the 
ecclesiastical side a similar doctrine was asserted in 
favour of the Pope"". For all this, however, a con- 
trary- doctrine, which was already maintained by 
Bulgarus [circ. 11 50], was constantly gaining ground. 
It taught that above private ownership there stood 
only a Superiority on the part of the State, which was 
sometimes expressly called a mere iurisdictio et pro- 
tectio, and which, even when it was supposed to be 
a sort of dominium, a sort of over-ownership, was still 
treated in a purely ' publicistic ' manner'*. However, 
it was just out of this Superiority that men developed 
the theory — a theory strange to archaic German law — ■ 
of a Right of Expropriation, by virtue whereof the 
State, whenever Reason of State demanded this, might 
modify private rights or abrogate them"^. 

Thus the history of the Theory of Expropriation J/'^*^^°7 
takes, in the main, the form of a process whereby priation. 
definite bounds are set to an expropriatory right. It 
was generally agreed that the Supreme Power may 
interfere with acquired rights ' for good cause,' but not 



8o Political Theories of the Middle Age. 

arbitrarily. For some this was an absolute principle of 
law°", and even those who would allow the Sovereign, 
either in all cases or at least in certain cases, to trans- 
gress it, still regarded it as a general rule'^*. As a 
' sufficient cause,' besides forfeiture for crime and many 
other multifarious matters, we see Public Necessity, to 
which Private Right must yield in case of collision. 
However, we may hear with increasing stress the 
assertion that, when there is expropriation for the good 
of the public, compensation should be made at public 
expense'"' ; but from this rule exceptions will be made, 
sometimes for the case of general Statutes which affect 
all individuals alike"', and sometimes for cases of 
necessity'**. 
Natural Now it is, however, highly characteristic of Medi- 

Property cval Doctrine that the ground of Positive Law did not 
Contract. Seem to it capable of supporting this protection of 
acquired rights. On the contrary, the sanctity as 
against the Sovereign of any such right was only to be 
maintained if and in so far as the right in question 
could be based outside Positive Law on some ground 
of Natural Law. Un this context two propositions 
became the foundation of the whole doctrine. First : 
the institution of property had its roots in the lus Gen- 
tium : in Law therefore which flowed out of the pure 
Law of Nature without the aid of the State, and in 
Law which was when as yet the State was not. Thence 
it followed that particular rights which had been ac- 
quired by virtue of this Institution in no wise owed 
their existence exclusively to the State'*'. Secondly : 
the binding force of Contracts descended from the Law 
Natural, so that the Sovereign, though he could not 
bind himself or his successors by Statute, could bind 
himself and his successors to his subjects by Contract. 
Thence it followed that every right which the State 



The State and Law. 8i 

had conferred by way of Contract was unassailable by 
the State, though here again an exception was made 
in favour of interferences proceeding ex iusta causa"". 
If, on the other hand, a private right could vouch 
for its existence no title of Natural Law, then doctrinal 
consistency denied a similar protection to this ' merely 
positive right''*''. This struck in particular at those 
rights which were held to fall under the rubric of 
'privileges' unilaterally conceded by the State and 
sanctioned only by Positive Law. An ever growing 
opinion deemed that rights of this class were always 
freely revocable at the instance of the public weaP^\ 
~~ Thus as regards acquired rights, the relative degree innate 
of protection which was due to any such right was Acquired 
held to be derived from and measured by the founda- '^ 
tion in Natural Law of the 'title' by which in the 
given case that right had been acquired. On the other 
hand, absolute protection against Positive Law was 
due to those rights which were directly conferred by 
pure Natural Law without the intermediation of any 
entitling act [e.g. the right to life], and which therefore 
were not conditioned by any title and could not be 
displaced by a title that was adverse. 

— In this sense Medieval Doctrine was already filled ^he^^^ 
withTEe" thought of the inbo"rn and indestructible rights of Man. 
of the Individual. The formulation and classification 
cJ^ch rights belonged to a later stage in the growth 
of the theory of Natural Law. Still, as a matter of 
principle, a recognition of their existence may be found 
already in the medieval Philosophy of Right when it 
attributes an absolute and objective validity to the 
highest maxims of Natural and Divine Law. More- 
over, a fugitive glance at Medieval Doctrine suffices 
to perceive how throughout it all, in sharp contrast 
to the theories of Antiquity, runs the thought of the 

M. 6 



82 Political Theories of the Middle Age. 



absolute and imperishable value of the Individual : a 
thought revealed'^'t^tarMianityaHcrgrasped in all its 
profundity by the Germanic Spirit. That every indi- 
vidual by virtue of his eternal destination is at the core 
somewhat holy and indestructible even in relation to 
the Highest Power : that the smallest part has a value 
of its own, and not merely because it is part of a whole : 
that every man is to be regarded by the Community, 
never as a mere instrument, but also as an end : — all 
this is not merely suggested, but is more or less clearly 
expressed^''. 
Rights of On the other hand occurred the thought of the origi- 
irunity. nal and essential rights of Superiority which belonged 
to the Whole Body. Here, once more, the Church 
had set up a model : a model of a Power in the Com- 
munity which, by virtue of Divine Law, was necessarily 
implicated in the Community's existence and therefore 
was absolutely one and indivisible and inalienable. 
The same necessity, the same oneness, indivisibility and 
inalienability were soon claimed for the plenitude of 
the Imperial Power by Legists and Publicists. Thus 
could they demonstrate against the Church the nullity 
of the Donation of Constantine"^, and thus could they 
demonstrate against other temporal rulers the impossi- 
bility of any complete liberation by privilege or pre- 
scription from the power of the Empire""*. What in 
this context was said of the Empire became in the end 
bare theory ; but, soon afterwards it gained practical 
value by being transferred from the Empire to the 
State. It was from this point outwards that, with the 
aid of legal and philosophic argument, was laid the 
doctrinal foundation upon which in course of time the 
towering Modern State, (absorbing meanwhile into itself 
the feudal and patrimonial rights of the Middle Age,) 
could take, and actually took, its stand. There arose 



The State and Law. 83 

the doctrine of a State Power, precedent and superior 
to all Positive Law, founded by the very Law of 
Nature, possessing an immutable sphere of action : of 
a State Power which, being an aboriginal and essential 
attribute of the Community, was the correlate of the 
inborn rights of individual men. Thenceforward, with 
ever-increasing distinctness, were formulated those 
indestructible rights of Superiority which are implicit 
in the idea of the State : rights which needed no title 
in Positive Law and could not be diminished by any 
title which that Law could bestow'*'- And then the 
notion of Sovereignty received its culminating attribute, 
when (however highly the Supreme Power might be 
extolled) men asserted that even itself could not destroy 
itself. If, on the one hand, the prevailing doctrine 
hence deduced the inalienable rights of the Crown*^, 
there were, even in the Middle Age, those who would 
establish by similar reasoning the inalienable rights of 
the People. Indeed, the attribute of indestructibility 
was applied to that original Sovereignty, which a com- 
mon opinion attributed to the Community, and we may 
already see assertions of the logically reasoned conclu- 
sion that, by virtue of Divine and Natural Law, the 
Sovereignty of the People is absolutely indestructible**. 
Hand in hand with this went a theoretical process 
which distinguished those rights of Superiority which 
belonged to the very essence of the State from fiscal 
rights casually acquired by the State and held by it in 
the same manner as that in which a private man might 
hold them'^. And thus it fell out that, as the doctrine 
of Nature Right became victorious, men began to 
grasp, as a matter of principle, that separation pf lus 
Publicum from lus Privatum which they had learned 
from the Romans. That contrast had at one time 
seemed to them hardly more than a matter of words ; 

6—2 



84 Political Theories of the Middle Age. 

soon, however, it was becoming ever more decisively 
a main outline in the ground-plan of all constructive 
Jurisprudence'*'. 
Transgres- In the course of these discussions of the relation- 
limits by ship of the State to Law, a deep difference of opinion 
the State, began to reveal itself, and to cleave the Medieval 
doctrine in twain, so soon as questions were raised as 
to the effects of a transgression by the State Power of 
the limits that Law set to its action. 
Void acts The properly Medieval and never completely 
obsolete theory declared that every act of the Sove- 
reigiT which broke the bounds drawn by Natural L^w 

wasTormally nulJLand void, As null and void therefore 

every judge and every other magistrate who had, to 
apply the' law was to treat, not only every unlawful 
^ executTve~acf, but "every uHlawiuT statute, even though 
If were pli'BIished By Pope or Emperor^". Further- 
more, the unlawful order or unlawful act was null and 
void for the individual subjects of the State. It was 
just for this cause that their duty of obedience was 
conceived as a conditional duty, and that the right of 
3 £tivelv resisting tyrann ical measures was conceded to 
them'". 
Formal C" This truly Medieval mode of thought was in har- 
tencerof \mony with the actual practice of the age of feudalism 
md the age in which the Community appeared as 
legal system of ' Estates.' But, as the idea of 
Sovereignty took a sharper outline, the orists beg an 
that in the legal s phere the Sovereign wa s 
formally "omnipotent. Then the prevalent opinion 
found~ rts"eir~"bhce more compelled to declare that 
in a Monarchy both the legislative and the 'exeiciitive'' 
acts of the Monarch are equipped with this formal 
'omnipotence. On the other hand, the doctrine of 
Popular Sovereignty made exactly at this point a 



the State. 



The State and Law. 85 

fruitful application of its principle of a Separation of 
Powers, since it would allow this formal omnipotence 
only to acts of legislation. When this point of 
view had been attained, all limitations of the State 
Power began to look like no more than the claims 
which Righteousness makes upon a Sovereign Will. 
If that Will knowingly and unambiguously rejected 
such claims, it none the less made a law which was 
formally binding : a law which was externally binding 
on individual men, and on the Courts also""*. 

None the less, there still was life in the notion that The state 
a duty of the State which was deducible from Natural Natural 
Law was a legal duty. Although there was no sharp 
severance of Natural Law from Morality, the limits 
drawn round the legitimate sphere of Supreme Power 
were not regarded as merely ethical precepts. They 
were regarded and elaborated as rules which controlled 
external action, and so were contrasted with purely 
ethical claims made upon internal freedom"". No one 
doubted that the maxims of Divine and Natural Law 
bore the character of true rules of true Law, even when 
they were not to be enforced by compulsory processes. 
No one doubted that a true and genuine Law existed 
which preceded the State and stood outside and above 
the State. No one doubted that formal Right [or 
Law] might be material Unright [or Unlaw], and that 
formal Unright might be material Righf^". No one 
doubted that the formally uncon ditional du t y of obedi- 
e nce that is inc umbent on subjects was materially 
limited by t^~XaK~of God Ind" Nature. No one 
doubted that the words of Holy Writ ' We must obey ^ 
GodTatEef than man' contained "a rule of Law for all 
p^ces and all ages, or th aLjhe meanest jjf subjects^ 



would be doing Righ t [Law} if in conformity with the 
dictates of BTs conscience he refused obedience to the 



86 Political Theories of the Middle Age. 

Sovereign^Power^ndsteadfestly bore the consequence, 
'^ or, again, that such a subject if hj took"'thia'"5ppS§!fe 
"course"wouTd be doing not Right J[L^wjJbu^^Unrighl 
[Unlaw]''". And we should go far wrong if we sup- 
"posed that the distinction between formal Right [or 
Law] and material Right [or Law], a distinction 
immanent in the idea of a Law of Nature, was but 
mere inactive theory. To say nothing of indirect 
consequences, it produced a direct result of far-reach- 
ing practical importance. All tribunals, all officials 
charged with the application of law, were conceived 
to be in duty bound to bring the acts of the Sovereign 
into the closest possible conformity with the dictates 
of material Right [or substantial Justice]. For this 
purpose they were to employ that exceedingly wide 
power of 'interpretation' with which they were sup- 
posed to be entrusted ^^ 
The State During the Middle Age we can hardly detect even 
Morality, the beginnings of that opinion which would free the 
Sovereign (whenever he is acting in the interest of the 
public weal) from the bonds of the Moral Law in 
general, and therefore from the bonds of the Law of 
Nature ^°'. Therefore when Machiavelli based his 
lesson for Princes upon this freedom from restraint, 
this seemed to the men of his time an unheard of 
innovation and also a monstrous crime. Thus was laid 
the foundation for a purely ' political ' theory of the 
State, and thenceforward this theory appeared as a 
rival of the ' nature-rightly ' doctrine. But just because 
there was a competitor and assailant in the field, this 
old doctrine evolved itself into an ampler form in the 
course of the next century. More and more the germs 
which were present in the medieval lore unfolded them- 
selves, and new thoughts about the nature of Human 
Society were brought to light as the old elements 



The State and Law. '87 

were systematized and combined. Irresistibly and 
incessantly waxed the System of Natural Law, intern- 
ally growing towards completion, externally extending 
the boundaries of its domination over the minds of 
men, plunging deeper into the positive doctrines of Law 
and Polity, subjecting them to its transmutative power. 

X. The Beginnings of the Modern State. 
At all these points the Doctrine of the Medieval Transmu- 

^ tation of 

Publicists has shown us a double aspect. Everywhere Medieval 
beside the formulation of thoughts that were properly by Antique 
medieval we have detected the genesis of ' antique- 
modern ' ideas, the growth of which coincides with the 
destruction of the social system of the Middle Age and 
with the construction of ' nature-rightly ' theories of 
the State. It remains for us to set forth by way of 
summary this tendency of medieval doctrine to give 
birth to the modern idea of the State and to transform 
the previously accepted theory of Communities. We 
must attend separately to the more important of those 
points at which this tendency exhibits itself**. 

The fundamental fact which chiefly concerns us state and 

' . . Individual 

when we contemplate this process of evolution is that obliterate 
in medieval theory itself we may see a drift which mediate 
makes for a theoretical concentration of right and '°"P^' 
power in the highest and widest group on the one 
hand and the individual man on the other, at the cost 
of all intermediate, groups. The Sovereignty of the 
State and the Sovereignty of the Individual were 
steadily on their way towards becoming the two central 
axioms from which all theories of social structure 
would proceed, and whose relationship to each other 
would be the focus of all theoretical controversy. And 
soon we may see that combination which is charac- 



88" Political Theories of the Middle Age. 



teristic of the * nature-rightly ' doctrines of a later time : 
namely, a combination of the Absolutism which is due 
to the renaissance of the antique idea of the State, 
with the modern Individualism which unfolds itself 
from out the Christiano-Germanic thought of Liberty, 
Origin of As regards the question touching the Origin of the 

Conuacl'" State — its origin in time and its origin in law — the 
Theory of the Social Contract slowly grew. It was 
generally agreed that in the beginning there was a 
State of Nature. At that time ' States ' were not, and 
pure Natural Law prevailed, by virtue whereof all 
persons were free and equal and all goods were in 
common. Thus it was universally admitted that the 
Politic or Civil State was the product of acts done at a 
later time, and the only moot question was whether 
this was a mere consequence of the Fall of Man, or 
whether the State would have come into being, though 
in some freer and purer form, if mankind had increased 
in numbers while yet they were innocent^'. By way 
of investigating the origin of Political Society, men at 
first contented themselves with a general discussion of 
the manner in which dominium had made its appear- 
ance in the world and the legitimacy of its origin ; 
and in their concept of dominium, Rulership and 
Ownership were blent. Then, when the question 
about Ownership had been severed from that about 
Rulership, we may see coming to the front always more 
plainly the supposition of the State's origin in a Con- 
tract of Subjection made between People and Ruler*™. 
Even the partizans of the Church adopt this opinion 
when they have surrendered the notion that the State 
originated in mere wrong. But then arose this further 
question: — How did it happen that this Community 
itself, whose Will, expressed in an act of transfer, was 
the origin of the State, came to be a Single Body 



The Beginnings of the Modern State. 89 



competent to perform a legal act and possessing a 
transferable power over its members? At this point 
the idea of a Divine Creation of the State began to 
fail, for however certain men might be that the Will 
of God was the ultimate cause of Politic Society, still 
this cause fell back into the position of a causa remota 
working through human agency"'^ As a more proxi- 
mate cause the 'politic nature' which God has im- 
planted in mankind could be introduced ; and Aristotle 
might be vouched. We can not say that there were 
absolutely no representatives of a theory of organic 
development, which would teach that the State had 
grown out of that aboriginal Community, the Family, 
in a purely natural, direct and necessary fashion'™. Still 
the weightier opinion was that Nature (like God) had 
worked only as causa remota or causa impulsiva : that 
is, as the source of a need for and of an impulse 
towards the social life, or, in short, as a more or less 
compulsory motive for the foundation of the State. 
More and more decisively was expressed the opinion 
that the very union of men in a political bond was an 
act of rational, human WilP°^ Occasionally there may 
appear the notion that the State was an Institution 
which was founded, as other human institutions [e.g. 
monasteries or colleges] were founded, by certain 
definite Founders, either in peaceful wise or by some 
act of violence'"^; but, in the main, there was a general 
inclination towards the hypothesis of some original, 
creative, act of Will of the whole uniting Community, 
This joint act was compared to the self-constitution of 
a corporation^"'. But men did not construct for this 
purpose any legal concept that was specially adapted 
to the case. The learning of Corporations developed 
by the lawyers had no such concept to offer, for they 
also, despite the distinction between universitas and 



90 Political Theories of the Middle Age. 

societas, [between Corporation and Partnership,] con- 
fused the single act whereby a Community unifies 
itself, with a mere obligatory contract made among 
individuals, and they regarded the peculiar unity of the 
Corporation as something that came to it from without 
by virtue of a concession made by the State. Thus in 
the end the Medieval Doctrine already brings the 
hypothetical act of political union under the category 
of a Contract of Partnership or ' Social ' Contract^, 
On the one hand, therefore, proclamation was made 
of the original Sovereignty of the Individual as the 
source of all political obligation'"'. In this manner a 
base was won for the construction of Natural Rights 
of Man, which, since they were not comprised in the 
Contract, were unaffected by it and could not be 
impaired by the State. On the other hand, since the 
Sovereignty of the State, when once it was erected, 
rested on the indestructible foundation of a Contract 
sanctioned by the Law of Nature, conclusions which 
reached far in the direction of the State's Absolutism 
could be drawn by those who formulated the terms of 
the Contract"". 
The Final If Philosophy was to find the terms of that fictitious 
the"state. Contract which provided a basis of Natural Law for 
the State and the State's power, it could not but be 
that the decisive word about this matter would be 
sought in the purpose which the State and its power 
are designed to fulfil. If, on the one part, the idea 
was retained that every individual had a final cause of 
his own, which was independent of and stood outside 
and above all political and communal life*™ — and here 
was a divergence from Classical Antiquity — so, on the 
other part, the final cause of the State. was always 
being enlarged — and here was a departure from the 
earlier Middle Age, though at times we may still hear 



The Beginnings of the Modern State. 91 

echoes of the old Germanic idea that the State's one 
function is the maintenance of peace and law'". In imita- 
tion of classical thought, men defined the State's purpose 
to be a happy and virtuous life : the realization of the 
public weal and civic morality. True, that, according to 
the prevailing doctrine, the function of the State had a 
limit, and a necessary complement, in the function of 
the Church : a function making for a higher aim than 
that of the State, namely, for inward virtue and supra- 
mundane bliss'". But an always stronger assault was 
being made upon the Church's monopoly of culture. 
An independent spiritual and moral mission was 
claimed for the State'"", until at length there were 
some who would ascribe to the State the care for all 
the interests of the Community, whether those interests 
were material or whether they were spiritual'^. 

If, however, the contents of the Institutes of Na- Natural 
tural Law were to be discovered by a consideration the Final 
of their final cause, this same final cause would also theTta°te. 
be the measure of those indestructible rights that per- 
tained to the ' Subjects ' of Natural Law. From the 
final cause of the Individual flow the innate and in- 
alienable rights of liberty, and so from the final cause 
of the Politic Community flow — and from of old the 
Church might here serve as a model — the State's 
innate and inalienable rights of superiority. From the 
rights thus bestowed Positive Law could take, and to 
them it could add, nothing. If, as a matter of fact, it 
contravenes them, it must admit itself over-ruled. The 
maxim Salus publica suprema lex entered on its reign, 
and a good legal title had been found on which Revo- 
lution, whether it came from above or from below, 
could support itself when it endeavoured to bring the 
traditional law into conformity with the postulates of 
the Law of Nature. 



92 Political Theories of the Middle Age. 

Revoiu- In truth Medieval Doctrine prepared the way for 

elements the great revolutions in Church and State, and this it 
m^Naturai ^.^ ^^ attributing a real working validity as rules of 
Natural Law to a system constructed of abstract pre- 
misses and planned in accordance with the dictates of 
expediency. The whole internal structure of the State 
was subjected ever more and more to criticism pro- 
ceeding from the Rationalist's stand-point. The 
value of the structure was tested by reference to its 
power of accomplishing a purpose and was measured by 
reference to an ideal and ' nature-rightly ' State. The 
steering of public affairs was likened to the steering of 
a ship ; it is a free activity consciously directed towards 
the attainment of a goaP". Thus there arose the idea 
of an Art of Government, and people undertook to 
teach it in detail'". There was disputation about the 
best form of government and the most suitable laws, 
and out of this grew a demand for such a transformation 
of Public Law as would bring it into accord with theo- 
retical principles. Through the last centuries of the 
Middle Age, alike in Church and Empire, unbroken 
and always louder, rings the cry for ' Reformation ' ! 
Develop. Turning now to the fundamental concepts of Public 

Sove- Law, the resuscitation and further development of the 
classical idea of Sovereignty will appear to us as the 
main exploit achieved in this department by the pre- 
valent endeavour to construct constitutions which shall 
conform to Natural Law. Men found the essence of 
all political organization in a separation of Rulers and 
Ruled. Also they took over from the antique world 
the doctrine of the Forms of Government and of the 
distinctions that exist between them. And so they 
came to the opinion that in every State some one visible 
Ruler, a man or a ruling assembly, is the ' Subject ' of 
a Sovereign Power over the Ruled'''. And then, when, 



reignty. 



The Beginnings of the Modern State. 93 

in contrast to the theory of ' Ruler's Sovereignty,' men 
developed the theory of a Popular Sovereignty, existing 
everywhere and always, the partizans of this doctrine 
did not once more call in question the newly acquired 
idea of Sovereignty, but transferred it to an Assembly 
which represents the People'". The Medieval notion 
of Sovereignty, it is true, always differed in principle 
from that exalted notion which prevailed in after times. 
For one thing, there was unanimous agreement that 
the Sovereign Power, though raised above all Positive, 
is limited by Natural Law''°, Secondly, it was as 
unanimously agreed that the idea of the Sovereign by 
no means excludes an independent legal claim of non- 
sovereign subjects to participate in the power of the 
State. On the contrary, advocates of ' Ruler's Sove- 
reignty' expressly maintained a political right of the 
People, and advocates of the People's Sovereignty 
expressly maintained a political right of the Ruler, so 
that even the extremest theories gave to the State 
somewhat of a 'constitutional' character. Therefore 
it was thought possible to combine the Sovereignty of 
the Monarch with what was in principle a Limited 
Monarchy™. Therefore also the idea of a Mixed 
Constitution could be developed without facing awk- 
ward questions''". Therefore again the beginnings of a 
doctrine which teaches the Separation of Powers could 
be reared on a basis of Popular Sovereignty *"'. And 
therefore also the Representative System could be 
theoretically elaborated ''^. None the less, the idea of 
Sovereignty, when once it had been formulated, irre- 
sistibly pressed forwards towards the conclusion that 
in the last resort some one Ruler or some one Assem- 
bly must be the ' Subject ' of the Supreme Power, and 
that in case of conflict the State is incorporate only in 
this one man or this one Assembly. 



94 Political Theories of the Middle Age. 

State and The State Power, thus focussed at a single point, 
in im- "^ made, over all members of the State, ever fresh claims 
«intact ^^ ^ swqSx Hghts of Superiority as were comprised 
within the idea and measure of the State's final cause 
and were compatible with those rights of Liberty of 
which the Individual could not be deprived*^. And 
just because the rights of Superiority flowed from the 
very idea of State Power, that Power, with increasing 
insistance, claimed to exercise them over all individuals 
equally and with equal directness and immediacy'^. If 
then, on the one hand, the Individual just in so far as 
he belongs fo the Community is fully and wholly 
absorbed into the State'^, so, on the other hand, there 
is a strong tendency to emancipate the Individual from 
all bonds that are not of the State's making. 
The State There was, moreover, a steady advance of the 
sive group, notion that the State is an exclusive Community. In 
phrases which tell of the Antique World men spoke of 
the State simply as ' Human Society.' The State is 
the all-comprehensive, and therefore the one and only, 
expression of that common life which stands above the 
life of the individual. 
State and This thought, it is true, came at once into conflict 

Church. •11 • • ,. 1.1 

With the ascription of a higher, or even an equal, 
right to the Church. And it was only with a great 
saving-clause for the rights of the Church that the 
prevalent doctrine of the Middle Age received the 
antique idea of the State. Still in the fourteenth and 
fifteenth centuries theory was preparing the way for 
the subsequent absorption of Church in State. One 
medieval publicist there was who dared to project a 
system, logically elaborated even into details, wherein 
the Church was a State Institution, Church property 
was State property, spiritual offices were offices of 
State, the government of the Church was part of the 



The Beginnings of the Modern State. 95 

government of the State, and the sovereign Eccle- 
siastical Community was identical with the Political 
Assembly of the Citizens. He was Marsilius of 
Padua"*. No one followed him the whole way. How- 
beit, isolated consequences of the same principle were 
drawn even in the Middle Age by other opponents 
of the Hierarchy. Already an unlimited power of 
suppressing abuses of ecclesiastical office was claimed 
for the State^*. Already, with more or less dis- 
tinctness, Church property was treated as public pro- 
perty and placed, should the salus publica require it, 
at the disposal of the State°^. Already powers of 
the State which reach far down even into the internal 
affairs of the Church were being deduced from the 
demand that in temporal matters the Church should 
be subject to the temporal Magistrate'^. Already the 
classical sentence which told how the ius sacrum was 
a part of the ius publicum was once more beginning 
to reveal its original meaning'*'. 

If, however, we leave out of sight the State's rela- state and 
tion to the Church, we see that, when Medieval 
Doctrine first takes shape, the idea of the State, which 
had been derived from the Antique World, was en- 
feebled and well-nigh suffocated by the consequences 
that were flowing from the medieval idea of the Empire : 
an idea which itself was being formulated by theory. 
The thought of a concentration at a single point of the 
whole life of the Community not only stood in sharp 
contradiction to actual facts and popular opinions, but 
also was opposed in theory to what might seem an 
insurmountable bulwark, namely to the medieval 
thought of an harmoniously articulated Universal Com- 
munity whose structure from top to bottom was of the 
federalistic kind''\ Nevertheless that antique concept 
of the State, when once it had found admission, worked 



96 Political Theories of the Middle Age. 



and worked unceasingly and with deadly certainty 
until it had completely shattered this proud edifice of 
medieval thought. We may see theory trying to hold 
fast the mere shadow of this stately idea, even when 
what should have corresponded to it in the world of 
fact, the Medieval Empire, had long lain in ruins. 
And so also we may see in theory the new edifice of 
the Modern State being roofed and tiled when in the 
world of fact just the first courses of this new 
edifice are beginning to arise amidst the ruins of the 
old. 
Definition When Aristotle's Politics had begun their new life, 
Slate. the current definition taught that the State . is the 
highest and completest of Communities and a Com- 
munity that is self-sufficing^^. It is evident that, so 
soon as men are taking this definition in earnest, only 
some one among the various subordinated and super- 
ordinated Communities can be regarded as being the 
State. For a while this logical consequence might be 
evaded by a grossly illogical device. The ttoXis or 
civitas that the ancients had defined was discovered by 
medieval Philosophy in a medieval town, and, by virtue 
of the ideal of the organic structure of the whole 
Human Race, the community of this ttoXis or civitas 
was subordinated to a regnuwi and to the imperium: 
that is, to higher and wider communities in which it 
found its completion and its limitations. Thus, no 
sooner has the medieval thinker given his definition, 
than he is withdrawing it without the slightest embar- 
rassment : his superlative becomes a comparative, and 
the absolute attribute becomes relative'^. Then, on 
the other hand, the lawyers, with the Corpus Juris 
before them, explained that the Empire is the one true 
State^"; but they defined civitas ^ndpopulus and even 
regnum in such a manner that these terms could be 



The Beginnings of the Modern State. 97 

applied to provinces and to rural or urban communes ''"l 
and then, as a matter of fact, they went on applying the 
concept of ' The State ' to communities that were much 
smaller than the Empire^. Still the antique idea, 
when once it had been grasped, was sure to triuniph 
over this confused thinking. Indeed we may see that 
the Philosophic Theory of the State often sets to work 
with the assumption that there cannot be two States 
one above the other, and that above the State there is 
no room for a World-State, while below the State 
there is only room for mere communes'*. Then in 
Jurisprudence, from the days of Bartolus onwards, 
an ever sharper distinction was being drawn between 
communities which had and those which had not an 
external Superior, and communities of the latter kind 
were being placed on a level with the Imperium^. 
The differences between civitas, regnum and imperium 
became mere differences in size instead of being joints 
in the organic articulation of a single body, and at the 
same time the concept of the State became the ex- 
clusive property of a community which recognizes no 
external superior (universitas superiorem non recog- 
noscens)^. 

Thus already in the Middle Age the idea of the The state 
State arrived at theoretical completion, and the attri- commun'i- 
bute of External Sovereignty became the distinguish- ^^^' 
ing mark of the State. The Imperium Mundi, which 
rose above the Sovereign States, had evaporated into 
an unsubstantial shadow, and at any rate was stripped 
of the character of a State, even when its bare exist- 
ence was not denied. For States within the State 
there was thenceforth no room, and all the smaller 
groups had to be brought under the rubric ' Communes 
and Corporations ''*'. 

From the concentration of 'State Life' at a single 

M. 7 



98 Political Theories of the Middle Age. 

Precarious point there by no means follows as logically necessary 
Communf a Similar concentration of all ' Community Life.' The 
Ji^^^= ^^j'^'" medieval idea of the organic articulation of Mankind 
might live on, though but in miniature, within each 
separate State. It might become the idea of the 
organic articulation of the Nation. And up to a 
certain degree this actually happened. The Romano- 
Canonical Theory of Corporations, although it decom- 
posed and radically transmuted the German notion of 
the autonomous life of communities and fellowships, 
always insured to the non-sovereign community a cer- 
tain independent life of its own, a sphere of rights 
within the domain of Public Law, a sphere that 
belonged to it merely because it was a community, and 
lastly, an organic interposition between the Individual 
and the Community of All. Even among political 
theorists there were not wanting some who in the last 
centuries of the Middle Age — centuries brimful of 
vigorous corporate life — sought to oppose to that cen- 
tralization which had triumphed in the Church and was 
threatening the State, a scientific statement of the idea 
of corporative articulation and a logically deduced 
justification of the claims that could be made on behalf 
of the smaller groups as beings with rights of their 
own and an intrinsic value**^. 

^~^ For all this, however, even in the Middle Age the 
drift of Theory set incessantly towards an exaltation 
of the Sovereignty of the State which ended in the 
exclusive representation by the State of all the common 
interests and common life of the Community. In this 
direction Philosophy with giant strides was outstrip- 
j)ing Jurisprudence. 
™J?" For those rights of Lordship of Germanic origin 

iheory and which subsisted withiu the State and beneath the 
Lordship. Sovereign's Power, Jurisprudence might long provide 



Centraliza' 
tion of 
Communa 
life. 



The Beginnings of the Modern State. 99 

a secure place. It had accepted the ius feudorum, and 
was prepared to treat offices as objects of proprietary 
rights. But Pohtical and Philosophical Theories could 
find no room whatever in their abstract systems for 
feudal and patrimonial powers'"^ On the contrary, this 
was just the point whence spread the thought that all 
subordinate public power is a mere delegation of the 
Sovereign Power*^. Also this was just the point 
whence spread a process which transmuted the me- 
dieval concept of Office, in such wise that every office 
appeared merely as a commission to use the Power of 
the State : to use, that is, in a certain manner, a power 
which is in substance one and untransferable. When 
that process is completed, every officer appears as the 
freely chosen instrument of the Sovereign WilP\ 

A similar attitude was taken by the abstract theories PWio- 
of Politics and Philosophy in relation to those indepen- theory and 
dent Rights of Fellowships which had their source in * Vdilw.' 
Germanic Law. For a long time Jurisprudence was^^'P*- 
prepared to give them a home ; but Philosophical 
Theory looked askance at them. The Doctrine of the 
State that was reared upon a classical ground-work 
had nothing to say of groups that mediated between 
the State and the Individual. This being so, the 
domain of Natural Law was closed to the Corporation, 
and its very existence was based upon the ground of a 
Positive Law which the State had made and might at 
any time alter. And then as the sphere of the State's 
Might on the one hand, and the sphere of the Indivi- 
dual's Liberty on the other, became the exclusive and 
all-sufficing starting-points for a Philosophy of Law, 
the end was that the Corporation could find a place in 
Public Law only as a part of the State and a place in 
Private Law only as an artificial Individual, while all 
in actual life that might seem to conflict with this 

7—2 



loo Political Theories of the Middle Age. 

doctrine was regarded as the outcome of privileges 
which the State had bestowed and in the interest of the 
public might at any time revoke. While the Middle 
Age endured, it was but rarely that the consequences 
of these opinions were expressly drawn***, Howbeit, 
Philosophic Doctrine was on the one hand filling itself 
full of the antique idea of the State, and on the other 
hand it was saving therefrom and developing the 
Christiano-Germanic idea of Freedom and depositing 
this in the theory of Natural Law. And as this work 
proceeded towards the attainment of ever more distinct 
results, the keener were the weapons which Medieval 
Doctrine was forging for that combat which fills the 
subsequent centuries. A combat it was in which the 
Sovereign State and the Sovereign Individual con- 
tended over the delimitation of the provinces assigned 
to them by Natural Law, and in the course of that 
struggle all intermediate groups were first degraded 
into the position of the more or less arbitrarily 
fashioned creatures of mere Positive Law, and in the 
end were obliterated. 



NOTES. 



1. Too little attention has hitherto been paid to the influence Import- 
on political theory of the work done by the Legists and Canonists, anceof the 
Really it is from their great commentaries that the purely political 

writers borrow their whole equipment of legal ideas. Thus it is 
characteristic that nothing is said of Bartolus and much is made of 
Ubertus de Lampugnano and his lecture on the Empire delivered at 
Prague in 1380 {Zeitschr. /. gesch. Rechtswis. 11. pp. 246 — 256). But 
this is a reproduction almost verbatim of Bartolus's Commentary on 
1. 24 Dig. de capt. 49, 15. Only a few ornaments have been added, 
such as the jest about the Greek Emperor being still an Emperor at 
least in that sort in which the king on the chess-board is a king. 

2. This sequence of ideas may best be seen in Dante's work, Macro- 
where it serves as a foundation for his Theory of the State. Comp. jJicro^" 
e.g. Monarchia, i. c. 7 (also c. 6) on the correspondence between the cosm. 
universitas humana with, on the one hand, the World-Whole, and, on 

the other hand, those smaller communities whose totum this uni- 
versitas is. But Dante takes the core of this thought from Aquinas : 
see especially Summa contra gentiles iii. q. 76 — 83, and De regimine 
principum i. c. 12. And long before this we meet the same ideas 
similarly formulated ; in particular the parallelism of macrocosm and 
microcosm : thus in Joh. Saresb. Polycr. (see below Note 10) and 
Hugo Floriac. De regia et sacerdot. pot. i. c. i. Then compare 
Alvar. Pelag. De planctu eccl. i.a 37 r, and Somn. Virid. i. c. 37 — 48. 
The last splendid example of the development of this fundamental 
thought is the 'CathoHc Concordance' of Nicolas Cusanus; especially 
I. c. I — 4. 

3. The application to the Order of Human Society of pro- Unity as 
positions derived from Augustine and teaching the principle of ^°^J" ^^^ 
'Unity before Plurality' is effected by Aquinas in particular. He 
employs the maxim Omnis muHitudo derivatur ab uno, and sees the 



I02 Political Theories of the Middle Age. 



partial 
Wholes. 



The 
Praises 
of Unity. 



prototypes of the State in the World with its One God, in the 
Microcosm of Man with its single soul, in the unifying principle 
which prevails among the powers of the soul, and which prevails also 
in the natural body and in the animal kingdom. See De reg. princ. 
I. c. 2, 3, 12 ; also Summa contra gentil. in. q. 8i. But the kernel 
of this mode of thought is older ; e.g. Hugo Floriac. I. c i brings in 
a comparison with the unity of the World-Whole and with that of 
the human body. Similar thoughts are developed by Aegid. Rom. 
De regim. princ. in. 2, c. 3 : since all multitudo ab uno procedit, it 
must in unum aliquod reduci: since among the heavenly bodies we 
see the rule of the primum mobile, in the body the rule of the heart, 
in a compound body the rule of one element, among bees the rule 
of a queen, so the State needs a single government. With higher 
genius, Dante, Hon. I. c. 5 — 16, bases the demand for a unum 
regens in every Whole on the types of an ordinatio ad unum, found in 
the World-Whole (c. 7), among the heavenly bodies (c. 9), and every- 
where on earth. Similar thoughts in Alv. Pel. i. a. 40 j Joh. Paris. 
c. i; Anton. Ros. 11. c. 5 — 7 ; Laelius (in Goldast 11. p. 1595 ff.); 
Petrus de Andio l. c. 8. Then a mystical development is given to 
the idea by Nicolas Cusanus, who finds an image of the Trinity 
throughout the Unity of the articulated world : thus God, Angels, 
Men in the Church Triumphant ; Sacrament, Priesthood, Folk in the 
Church Militant; Spirit, Soul, Body in Man. See Cone. Cath.; and 
also De auctor. praes. in Diix, i. p. 475 ff. 

4. See Thom. Aq. Comm. ad Ethic, lect. i (Op. ed. Parm. xxi. 
p. 2) : hoc totum, quod est civilis multitudo vel domestica familia, 
habet solam unitatem ordinis, secundum quam non est aliquid 
simpliciter unum ; et ideo pars eius totius potest habere operationem 
quae non est operatio totius ;... habet nihilominus et ipsum totum 
aliquam operationem, quae non est propria alicuius partium. De reg. 
princ. I. c. i : since the Many bound together ' secundum propria 
quidem difFerunt, secundum autem commune uniuntur,' there must be 
'moventia ad proprium bonum unius cuiusque,' as well as a 'movens 
ad bonum commune multorum.' 

5. In high terms Dante, c. 15, lauds the Principle of Unity as 
the source of all good, for the maxima ens must be the maxima unum, 
and the maxime unum must be the maxime bonum. Similarly Thom. 
Aq. De reg. princ. i. c. 3 ; comp. Summa contra gentil. iv. c i flf. 
Nay, ' binarius numerus infamis.' Papal theory accuses its oppo- 
nents of heresy, since they ' ponunt dua principia.' See e.g. 
Boniface VIII. in the bull Unam sanctam of 1302 (c. i Extrav. 
comm. I. 8), and the letter in Raynald. Ann. 1302 nr. 12 ; also what 



Notes. 103 

is said by the Clerk in Quaestio in utramque part. p. 105 j Joh. 
Andr. upon c. 13, X. 4, 17 ; Panorm. upon c. 13, X. 2, i. 

6. Dante, i. c. 3 and 4, endeavours to define the common The 
purpose of Mankind. He finds it in the continuous activity of the ^"'■pose "f 
whole potency of Reason, primarily the speculative, secondarily the M°ankkd! 
practical. This is the 'operatio propria universitatis humanae'j the 
individual man, the household, the civitas and the regnum pariiculare 

are insufficient for it. For the achievement of it only a World-Realm 
will serve, and the propinquissimum medium is the establishment of 
an Universal Peace. Comp. iii. c. 16. 

7. Already in 829 the episcopal utterances about Church and '^''^ 
State at the Councils of Worms and Paris, afterwards appended to, church ^' 
the Capitulary of Worms, begin with the principle (grounded on and the 
words of S. Paul) 'universalis sancta ecclesia Dei unum corpus ^^^^{ 
manifeste esse credatur eiusque caput Christus.' On this follows Mankind. 
the doctrine, warranted by Gelasius and Fulgentius, that ' principaliter 
itaque totius sanctae Dei ecclesiae corpus in duas eximias personas, 

in sacerdotalem videlicet et regalem...di visum esse novimus'j and 
lastly the professional duties of the priesthood on the one hand and 
the kingship on the other are particularized. See Concil. Paris, in 
Mansi xiv. p. 605 if.; Const. Worm, in Mon. Germ. Leg. i. p. 333, 
c z — 3, p. 333 ff., p. 346 flf.; also Hefele Conciliengesch. iv. p. 57 fF. 
and 72 ff. To the like effect Jonas of Orldans (ob. 843), De insti- 
tutione regia, in d'Achdry, Spicileg., ed. nov. Paris 1723, i. p. 324. 
Similar thoughts from Agobard of Lyons (ob. 842) and Hinkmar of 
Reims (ob.- 882). After this the picture of Mankind as one body 
with a God-willed spiritual and temporal constitution is common. 
Thus in Gregor. VII., e.g. lib. i. ep. 19, ann. 1073 ; Ivo of Chartres, 
e.g. ep. 106, p. 125, ep. 214, p. 217 ff.; S. Bernard, ep. 244 ad Conn 
Reg. ann. 1146, p. 440 ff. (also in Goldast 11. 67 — 68); Gerhoh 
of Reichersberg, De corrupto statu eccL, praef. p. 11; Thomas of 
Canterbury, ep. 179, p. 652 ; Hugo Floriac. i. c. i and 11. pp. 46, 
50 ; Innocent III., e.g. Registr. sup. neg. Rom. Imp. ep. 2, i8 and 
79, pp. 997, 1012, 1162. Throughout Aquinas: see e.g. Summa 
Theol. II. r, q. 81, a. i (multi homines ex Adam derivati sunt tan- 
quam multa membra unius corporis) and in. q. 8, a. i and 2 (genus 
humanum consideratur quasi unum corpus, quod vocatur mysticum, 
cuius caput est ipse Christus et quantum ad animas et quantum ad 
corpora) ; Lect. 2 ad Rom. 1 2 ; Lect. 3 ad 1 Corinth. 1 2. See also 
Vincent. Bellov. Spec, doctr. lib. vii. c. 31 (duo latera corporis unius). 
On innumerable occasions Theologians and Canonists employ the 
term ecclesia to describe a Realm of All Mankind, including its 



I04 Political Theories of the Middle Age. 



Priesthood 

and 

Realm. 



Temporal 
Power of 
the Pope 
and the 
Principle 
of Unity. 



temporal constitution: e.g. August. Triumph, i. q. i, a. 6; Joh. Andr. 
upon c. 13, X. 4, 17; Panorm. upon c. 13, X. 2, i. On the other 
hand, Engelbert of Volkersdorf, De ortu et fine c. 15, 17 and 18, is 
the first expressly to argue that Mankind is one people with only 
one true law and one true consensus, and must therefore be one 
true respublica. Then to the like effect Dante, Mon. i. c. 3, 5—9. 
Lupoid. Bebenb., c. 15. Petrarca, Ep. vii. and viii. Alvar. Pelag. i. 
a. 13 F, a. 37 Q and R, a. 40 and 45 (unum corpus mysticum, una 
communitas et unus populus, una civilitas et politia Christiana). 
Quaestio in utramque partem, p. 102 ff. Ockham, Octo qu. iii. c. i 
(totum genus humanum est unus populus; universitas mortalium est 
una communitas volentium habere communionem ad invicem) and 
c. 9 ; also Dial. in. tr. 2, 1. i, c. i (univ. mortalium, unus populus, 
unus grex, unum corpus, una civitas, unum collegium, unum regnum; 
connexio inter omnes mortales) ; ibid. 1. 3, c. 17 and 22. Somn. 
Virid. II. c. 305 — 312 ; Nic. Cus. Cone. Cath. in. c. 1 and 41. 

8. As is shewn by all the passages cited in our last note, the 
whole Middle Age is filled by the thought which finds a typical 
expression in the Summa mag. Stephani Tornacensis (1165 — 1177) 
praef. : in eadem civitate sub uno rage duO populi sunt, et secundum 
duos populos duae vitae, duo principatus, duplex iurisdictionis ordo 
procedit : the civitas is the ecclesia, the king is Christ, the two folks 
are the clergy and the laity, the two lives are the spiritual and the 
temporal, the two principatus are sacerdotium et regnum, the two 
spheres of law the divinum et humanum. References to the spiritual 
and bodily sides of humanity become common, and the purposes of 
the two Orders are found respectively in this world and the next. — 
Occasionally Science, the studium, is introduced as a third and inde- 
pendent province of life. See Ptolom. Luc. De reg. princ. 11. c. 16 
in fine : in qualibet monarchia ab initio saeculi tria se invicem comi- 
tata sunt : divinus cultus, sapientia scholastica et saecularis potestas. 
Jordan. Osnabr. c. 5, p. 7r : the Romans received the sacerdotium, 
the Germans the imperium, the French the studium; these are the 
three courses in the edifice of the Catholic Church ; the sacerdotium 
at Rome is the foundation, the studium at Paris the roof, the imperium 
at Aachen, Aries, Milan and Rome the four walls. 

9. When Boniface VIII. [in the famous bull Unam Sanctam] 
put the sum and substance of the ecclesiastical claims into a com- 
pendious form (c. I, Extra V. com. i. 8), he placed in the forefront 
an emphatic statement of the principle of Unity. But the same 
principle had long been the base of the assertions of the popes and 
their partizans. The argument that could be drawn from the superior 



Notes. 



105 



worth of Spiritual Power could become a proof of the subjection of 
Temporal Power only by virtue of the self-evident proposition that an 
ordinatio ad unum, in the sense that we have explained above, is 
requisite for all mankind. The consequences deduced from a com- 
parison of the two Powers to body and soul, or sun and moon, would 
have lacked cogency, had any doubt been felt touching the validity of 
a comparison of the whole body of mankind to a single organism or 
to a celestial vault enlightened by a single luminary. Also the argu- 
ment which speaks of the two swords is only cogent if we may take 
for granted that God has destined both swords for the protection of 
a one and only Church. And so it is with other arguments. Then 
from the fourteenth century onwards appeals to the argumenium 
unitatis, coupled with references to the decretal of Boniface, are 
freely made by the ecclesiastical party. We even see the downright 
statement that, since it would be heretical to derive the universe 
from two principles, so also it must be heretical to suppose two 
co-equal Vicars on earth (ponere duos vicarios aequales in terris). 
See e.g. John Andr. upon c. 13, X. 4, 17; Panorm. upon c. 13, 
X. 2, 1 ; August. Triumph. I. q. i, a. 6 and q. 22, a. 3 (the tota 
machina mundialis is single, therefore there can be but one princi- 
patus). Petrus de Andlo 11. c. 9. See also the arguments drawn 
from the unitas prindpii by the Clerk in Somn. Virid. i. c. 37, 43, 45, 
47, loi ; also the arguments for and against unity in Quaest. in 
utramque partem, p. 102 ff. ; in Ockham, Octo qu. i. c. i, 5, 18; 
III. c, 1 and 9, also c. 8; Dial. iii. tr. i, 1. 2, c. i and 30; and 
Anton. Rosell. i. c. 3, 4, 19, 39—55. 

10. This absorption of the State by the Church is already clearly Absorp- 
proclaimed, so far as concerns its first principle, by Gregory VII. ^°" °f 
Nothing less than this lies in the extension that he gives to the Church. 
' potestas ligandi in coelo et in terra ' committed to S. Peter, and to 
the ' Pasce oves meas.' He asks (Registrum, lib. 4, ep. 2, ann. 1076, 
p. 242 — 243) : ' Quod si sancta sedes apostolica divinitus sibi coUata 
principali potestate spiritualia decemens diiudicat, cur non et saecu- 
lariaT And again (lib. 8, ep. 21, ann. 1080, p. 279): 'Cui ergo 
aperiendi claudendique coeli data potestas est, de terra iudicare non 
licet?' And again (lib. 4, ep. 24, ann. 1077, p. 455): 'Si enim 
coelestia et spiritualia sedes b. Petri solvit et iudicat, quanto magis 
terrena et saecularia.' Compare also lib. 4, ep. 23, p. 279, and lib. i, 
ep. 63, p. 82, and the statement of papal rights in the Dictatus 
papae 11. 55*, p. 174 — 6. — But the system is for the first time 
scientifically developed by John of Salisbury. For him the respublka 
is a body fashioned by God in the likeness of the macrocosm of 



io6 Political Theories of the Middle Age. 



Insuffi- 
ciency of 
an In- 
visible 
Unity. 



Temporal 
Sovereign- 
ty of the 
Pope. 



Nature and the microcosm of man ; in it the Priesthood, being the 
Soul, rules the rest and has even to govern, erect, depose the Head ; 
Polycrat. iv. c. i — 4 and 6, v. c. 2 — 6, vi. c. 21. Similarly Thomas 
of Canterbury, ep. 179 ad Henr. II. Reg. Angl., p. 652: 'Ecclesia 
enim Dei in duobus constat ordinibus, clero et populo j...in populo 
sunt reges, principes, duces, comites et aliae potestates, qui saecularia 
habent tractare negotia, ut totum reducant ad pacem et unitatem 
Ecclesiae.' See also Ivo of Chartres, ep. 106, p. 125; S. Bernard, 
ep. 256, and De consid. lib. 4, c. 3 ; S. Anselm. Cantuar. Comm. in 
Matth. c. 26. Then Innocent III. gave this doctrine the juristic 
shape in which it passed into the Canon Law. See especially c. 34, 
X. I, 6 ; c. 6, X. I, 33 ; c. 13, X. 2, i ; c. 13, X, 4, 17 ; also lib. 2, 
ep. 202, ann. 1199, in Migne, vol. 214, p. 759 : Petro non solum 
universalem ecclesiam, sed totum reliquit saeculum gubernandum. 
Innocent IV. expressed the same thought in a yet sharper form. 
See the letter to Frederick II. in v. Wessenberg, Die grossen Kirchen- 
versammlungen, vol. I. (2 ed. Konstanz, 1845), p. 305 — 6. Also 
Comm. on c. 13, X. 4, 17 In principle Thom. Aquinas stands on 
the same ground. See De reg. princ. I. c. 14 — 15 ; Summa Theol. 
II. 2, q. 60, a. 6, ad. 3 j Opusc. contra errores Graecorum, libell. 11. 
c. 32 — 38 (the Pope head of the respublica Christi). Yet more 
strongly, Aegidius Romanus, De pot. eccl. I. c. 2 — 9, 11. c. 4 — 5, 
10 — II, III. c. 12. When Boniface VIII. has given to this doctrine 
a final form [Unam sanctam, c i, Extrav. com. i. 8] it is widely 
spread abroad by the canonists. See in particular Aug. Triumph, i. 
q. I, a. 6 (the ecclesia is identical with the communitas totius orbis, 
which comprehends both the corporate et spirituale) and a. 8. Alvar. 
Pelag. I. a. 13 and 37 : the Church has the spiritual and temporal 
power. Also a. 40 : she is the Une politia, of which the State is only 
part ; both powers are ' partes integrales unius potestatis ' ; they have 
the same finis supranaturalis, since the temporal is but a mean of 
the spiritual. Also a. 59 D: ' partes distinctae unius potestatis.' 

11. See especially Thom. Aquin. Summa contra gentil. iv. 
c. 76, p. 625 — 6: a refutation of the argument that Christ's headship 
would suffice to secure the requisite unity: His corporal presence 
should be represented by a Monarch. Also Alvar. Pel. i. a. 40 d 
(against Dante). 

12. Among the Popes themselves this is expressly proclaimed 
by Gregory VII. (see passages cited in Note 10; also lib. i. ep. 55% 
ann. 1075, p. 174: quod solus possit uti imperialibus insigniis); 
also by Innocent III. (see Note 10; in particular, in c. 13, X. 4, 17 
he deduces the proposition 'quod non solum in Ecclesiae patrimonio. 



Notes. 107 

super quo plenam in temporalibus gerimus potestatem, verum etiam 
in aliis regionibus, certis causis inspectis, temporalem iurisdictionetn 
casualiter exercemus' from the divine mandate that he has as, 'eius 
vicarius, qui est sacerdos in aeternum secundum ordinem Melchise- 
dech, constitutus a Deo iudex vivorum et mortuorum'j compare 
Reg. sup. ntg. Imp. ep. 18, p. 1012: 'vicarius illius, cuius est terra 
et plenitude eius, orbis terrarum et universi qui habitant in eo'); 
Innocent IV. (see Note 10); Boniface VIII. (c. i, Extrav, comm. 
I. 8: 'subesse Romano pontifici omni humanae creaturae declara- 
mus, dicimus, definimus et pronuntiamus omnino esse de necessitate 
salutis'; he called himself Caesar and Emperor, comp. v. Wessenberg, 
Kirchenversammlungen, i. p. 307). — Among the Canonists, aheady 
in cent. xii. many say 'Papa ipse verus Imperator'j comp. Sumraa 
Colon. (ir6o — 11 70) and Paris, (circ. 11 70) upon c. 3, C. 2, q. 6, v. 
eorum, and c. 7, C. 2, q. 3 diet. Grat. in Schulte, Sitzungsber. [Vienna 
Acad.] vol. 64, pp. Ill, 131. Also Gloss, ordin. upon c. i, Dist. 22, 
v. coelestis. So too Thom. Aquinas says 'nisi forte potestati spiri- 
tuali etiam saecularis potestas coniungatur, sicut in Papa, qui utrius- 
que potestatis apicem tenet, sc. spiritualis et saecularis, hoc illo 
disponente qui est sacerdos et rex in aeternum, sec. ordinem 
Melchisedech etc.'; in libr. 11. Sent. dist. 44, ad. 4 (Op. vi.). Ptolom. 
Lua, De regim. princ. iii. c. 10: Peter and his successors have been 
appointed by Christ to be both Priests and Kings, so that the Pope 
is the caput in corpore mystico and from him all the sense and move- 
ment of the body flow: in temporals also, for these depend upon 
spirituals, like body upon soul; ib. c. 13 — 19. Similarly Aegid. 
Rom. I. c. 2 — 3; Aug. Triumph, i. q. i, a. 7 — 9; 11. q. 36; Petrus 
de Andlo 11. c. 9. Yet more definitely Alvar. Pelag. i. a. 13, 
especially c and g; a. 37, R nr. 19 (est simpliciter praelatus omnium 
et monarcha), and Bb (papa universalis monarcha totius populi 
Christiani et de iure totius mundi); a. 52; a. 59 k (Christ and Pope 
are in no wise two heads, but one head); but in particular the 
reasoning of a. 40: (i) pohtiae Christianae est unus principatus 
absolute: (2) huius politiae Christ, unius unus est princeps regens et 
dirigens eam : (3) primus et supremus iste princeps politiae Christ, 
est Papa. Opinions which in part go yet further concerning the 
verum dominium temporalium are stated and refuted by Joh. Paris., 
proem, and c. 15 — 43; Ockham, Octo qu. i. c. 2, 7 — 19; 11. c. 7; 
Dial. III. tr. i, 1. 1, c. 2 ff.; 1. 2, c. i ff.; tr. 2, 1. i, c. 18 ff.; Ant. Ros. I. 
c. I — 19, and c. 39 — 55. Comp. also the Clerk in Somn. Virid. 
c. 6, 8, 10, 12, 77, 85, 89, III, 117, 151, 163. 

13. From Gregory VII. onwards the Popes and their supporters 



[o8 Political Theories of the Middle Age. 



Direct are unanimous in holding that, so far as the substance is concerned, 
Power of ^ijg Temporal as well as the Spiritual Power belongs to the Chair of 
in T>m-^ Peter, and that the separation which is commanded by divine law 
poralities. affects only the Administration, not the Substance. The various 
shades of opinion differ only as to the extent of the right of user 
committed to the temporal ruler and of the right reserved to the 
Pope, and, in particular, as to the definition of the cases in which 
the Pope, notwithstanding the right committed to the secular 
magistrate, may directly interfere in temporal affairs. — Therefore 
it is a mistake to represent the great Popes as proclaiming, and 
the cominon opinion of the later Middle Age as accepting, only 
that sort of 'indirect power in temporalities' (in Bellarmine's sense 
of these terms) which was claimed for the Apostolic See by later 
theorists. This mistake has been made by Hergenrother, op. cit. 
421 ff., Molitor, op. cit. p. 166 ff. and others. The words of 
Innocent IV. on which Molitor has laid special weight, say merely 
that as a general rule the spiritual sword is not to meddle with the 
wielding of the temporal, and it is only to this normal separation in 
the use of the swords that Innocent's words 'directe, secus indirecte' 
(c. 13, X. 2, i) refer. The statements to the effect that the Pope, by 
virtue of his spiritual power, 'per consequens' rules over temporal 
affairs, because and in so far as 'temporalia ordinantur ad spiritualia 
tanquam ad finem,' make no surrender of the fundamental thought 
of an Universal State in which the plenitude of all power, worldly as 
■well as spiritual, is in principle committed to the Pope. Indeed 
these same popes and canonists, as Molitor (p. 91 ff.) admits, ex- 
pressly assert the axiom that the Pope has both swords and commits 
one of them to other hands merely for use. With this axiom the 
doctrine that would allow the Pope only a potestas indirecta is irre- 
concilable. For this reason even Torquemada, despite his tendency 
towards moderation in the statement of papal rights (Summa 11. 
c. ii3ff.), cannot be reckoned among the advocates of this doctrine 
of 'indirect power,' since in plain words he claims for the Pope 
utrumque gladium, and in radice the temporal power (c. 114). As 
a hint of the doctrine of cent. xvi. we might rather choose a passage 
in which Gerson ascribes to the Church in worldly affairs 'dominium 
quoddam directivum, regulativum et ordinativum' (De pot. ecc. c. 12; 
Op. II. 248). 
Inferiority I4' See Joh. Saresb. IV. c. 3: the Church has both swords: 
of Tem- 'sed gladio sanguinis... utitur per manum principis, cui coercendorum 

poral ,. ..,..,.. . . 

Power. corporum contulit potestatem, spirituahum sibi in pontificibus aucto- 
ritate reservata: est ergo princeps sacerdotii quidem minister et qui 



Notes. iQK^ 

sacrorum officiorum illam partem exercet, quae sacerdotii manibus 
videtur indigna,' Aegid. Rom. i. c, 9; August. Triumph, i. q. i, 
a- 4. q- 43> a. 2; Alvar. Pelag. i. a. 13 and 37. 

15. In some form or another, as might be expected, all advo- The 
cates of the ecclesiastical power maintain, not only the separation of ^°^t'* 
the two powers, but the divine institution of the worldly Magistrature: ordained 
for this was a revealed truth [Rom. xiii. i ; Matth. xxii. 21]. So even °^ ^°^' 
Gregor. VII. lib. 2, ep. 31, lib. 3, ep. 7, lib. 7, ep. 21, 23, 25. 
Innoc. III. 1. 7, ep. 212 (vol. 215, p. 527); Reg. sup. neg. Imp. ep. 

2 and 79. Joh. Saresb. Polycr. iv. c. i, p. 208 — 209 and vi. c. 25, 
p. 391 — 395. Thom. Aquin. in libr. 11. Sent. dist. 44, ad. 4 (utraque 
deducitur a potestate divina). Ptol. Luc. iii. c. 1 — 8. Alv. Pel. i. 
a. 8, 41 C — K, 56 B. Host. Summa iv. 17. Panorm. on c. 13, X. 2, i. 

16. Resuming the teaching of Augustine, Gregory VII. is the Sinful 
first to declare that the temporal power is the work of sin and the the' State, 
devil. See lib. 8, ep. 21, ann. 1080, p. 456 — 7: 'Quis nesciat reges 

et duces ab iis habuisse principium, qui Deum ignorantes, superbia, 
rapinis, perfidia, homicidiis, postremo universis sceleribus, mundi 
principe diabolo videlicet agitante, super pares, scilicet homines, 
dominari caeca cupiditate et intolerabili praesumtione affectaverunt? 
And again: 'itane dignitas a saecularibus — etiam Deum ignoranti. 
bus — inventa, non subicietur ei dignitati, quam omnipotentis Dei 
providentia ad honorem suum invenit mundoque misericorditer 
tribuit?' See also lib. 4, ep. 2, ann. 1076, p. 243: 'illam quidem 
(scilicet, regiam dignitatem) superbia humana repperit, banc (episco- 
palem) divina pietas instituit; ilia vanam gloriam incessanter captat, 
haec ad coelestem vitam semper aspirat.' Cardinal Deusdedit 
(ob. 1099), Contra invasores etc. lib. iii. sect. 5 et 6 § 12 (in Mai vii. 
p. 107) argues in like fashion: 'Nee mirum, sacerdotalem auctori- 
tatem, quam Deus ipse per se ipsum constituit, in huiusmodi causis 
regiam praecellere potestatem, quam sibi humana praefecit adin- 
ventio eo quidem permittente, non tamen volente': then the example 
of the Jews is cited. John of Salisbury, Polycrat. viii. c. 17 — 18, 
20, says of all regna 'iniquitas per se aut praesumpsit aut extorsit a 
Deo' J the latter was the case of the Jews according to i Reg. viiL, 
since 'populus a Deo quem contempserat sibi regem extorsit.' — 
Hugh of Fleury (Prol. i. c. i, 4, 12, 11. p. 66 — 68), who himself 
deduces an immediately divine origin for the royal power from 
' Non est potestas nisi a Deo,' describes as a wide-spread error the 
doctrine which would give to that power a human, and therefore 
sinful, origin. Innocent III., Reg. sup. neg. Imp. ep. 18, argues 
for the indestructibility of the Priesthood and the frailty of the 



no Political Theories of the Middle Age. 

Realm, since the one was instituted by divine ordinance and the 
other (i Reg. viii.) 'extortum ad petitionem humanam.' Compare 
August. Triumph, ii. q. 33, a. i. Also Alvar. Pelag. i. a. 59 g 
(regnum terrenum, sicut ipsa terrena creatura sibi constituit tanquam 
ultimum finem, ...est malum et diabolicum et opponitur regno coe- 
lesti) and 64 D — E (sordida regni temporalis initia). — Gerson, Op. iv. 
648 : the efficient cause of dominatio and of coerciiivum dominium 
was sin. — Petr. Andl. I. c. i: 'fuit itaque solum natura corrupta 
regimen necessarium regale'; but for the Deluge, instead of owner- 
ship and lordship, there would have continued to be, as there will 
be in another world, liberty, equaUty and community of goods under 
the direct government of God. See also Frederick II. in Petr. de 
Vin. ep. V. c. i. [In an earlier part of his book, D. G. R. iii. 125, 126, 
Dr Gierke has stated the doctrine of the sinful origin of the State 
that is found in Augustine's De civitate Dei.] 
Ordination 17- Already Honorius Augustodunus, Summa gloria, c 4, in 
Church ''^ Migne, vol. 172, pp. 1263—5, declares that, since soul is worthier 
than body, and priesthood than realm, the realm iure ordinaturhy the 
priesthood j as the soul vivifies the body, so the priesthood constituens 
ordinat the realm : ' igitur quia sacerdotium iure regnum constituet 
iure regnum sacerdotio subiacebit.' — So again, Hugo a S. Victore, 
De sacram. lib. 11. pars 2, c. 4 : the spiritual power is worthier than 
the temporal, ' nam spiritualis potestas terrenam potestatem et insti- 
tuere habet, ut sit, et iudicare habet, si bona non fuerit ; ipsa vero 
a Deo primum instituta est, et cum deviat, a solo Deo iudicari potest, 
sicut scriptum est: Spiritualis diiudicat omnia et ipse a nemine 
iudicatur': the spiritual is prior in time as well as in worth: thus in 
the Old Dispensation the priesthood was first instituted by God, and 
afterwards the royal power was ordained by the priesthood at God's 
command ; so now in the Church the sacerdotal dignity consecrates 
the royal power, both sanctifying it by blessing and forming it by 
institution. — So in the same words Alexander Halensis, Summa 
Theolog., P. IV. q. x., memb. 5, art. 2. Then Aegid. Rom. De pot. 
eccl. I. c. 4, and Boniface VIII. in Unam Sanctam: 'nam veritate 
testante spiritualis potestas terrenam potestatem instituere habet et 
iudicare, si bona non fuerit.' Compare also Joh. Saresb., above 
Note 14, and Thomas of Canterbury, who, in the passage cited in 
Note 10, proceeds to say : *et quia certum est reges potestatem suam 
accipere ab Ecclesia, non ipsam ab illis, sed a Christo.' Vincent. 
Bellovac. lib. vii. c. 32.— A thorough statement by Alvar. Pelag. I. 
a. 36, 37 (regalis potestas est per sacerdotalem ordinata), 56 b, 
59 F— G (the spiritual is efficient and final cause of the temporal 



Notes. 1 1 1 

power, and only in this way has the, in itself sinful, terrene realm a 
share in the sanctity of the celestial). August. Triumph, i. q. i, a. i 
and 3, q. 2, a. 7, 11. q. 33, a. i and 2 (the imperium tyrannicum is 
older than the priesthood, but the imp. polUicum, rectum et iustum is 
established by the Popes for the defence and service of the Church). 
— Hostiensis, upon c. 8, X. 3, 34, nr. 26, 27. — Panormitanus, upon 
c. 13, X. 2, I. — Konrad v. Megenberg, in Hofler, Aus Avignon, 
p. 24 ff. — A relationship of this sort between the two powers is 
already implied in the allegorical use of Sun and Moon (e.g. in 
Gerhoh v. Reichersberg, praef c. 3), which becomes official from 
the time of Innocent III. onwards : c. 6, X. i, 33, also lib. i, ep. 
104, vol. 214, p. 377, and Reg. s. neg. Imp, ep. 2, 32 and 179 j 
for the moon borrows her light from the sun (ep. 104 cit.). The 
yet commoner comparison with Soul and Body effects the same pur- 
pose, for the soul was regarded as the formative principle of the body. 
See Honorius Augustod. as above, and Ptol. Luc. De reg. princ. in. 
c. 10 (sicut ergo corpus per animam habet esse, virtutem et opera- 
tionem...ita et temp, iurisdict. principum per spiritualem Petri et 
eius successorum). 

18. The thought that in the last resort the State is an Ecclesi- The State 
astical Institution is already being expressed when, on the one hand, s^slca'r 
the two powers have assigned to them respectively the ghostly domain Institu- 
and the corporeal, and, on the other hand, corporeal purposes are 
declared to be mere means for ghostly purposes. See Gregor. VII., 

lib. 8, ep. 21; Innoc. III., Respons. in consist, in Reg. sup. neg. 
Imp. ep. 18, p. ioi2fr.; c 6, X. i, 33. Thom. Aquin., De reg. 
princ. I. c. 14 — 5 : the priests have the care of the ultimate end; 
temporal kings have merely the care of antecedent ends : ' ei ad 
quem finis ultimi cura pertinet, subdi debent illi ad quos pertinet 
antecedentium finium, et eius imperio dirigi.' See also Thom. Aq. 
in libr. 11. Sent. dist. 44 in fine, and Summa Theol. 11. 2, q. 60, a. 6 
ad. 3. Vincent. Bellov. lib. vii. 3 and 32, Aegid. Rom., De pot. eccl. 
II. c. 5 : ' potestas regia est per pot. eccl. et a pot. eccl. constituta 
et ordinata in opus et obsequium ecclesiasticae potestatis.' Aug. 
Triumph. I. q. i, a. 8: 'temporalia et corporalia...ad spiritualia 
ordinantur tanquam instrumenta et organa.' Alv. Pel. i. a. 37 
P and R, a. 40 and 56. Durandus a S. Porciano, De origine iuris- 
dictionis, qu. 3 : ' temporalia quae ordinantur ad spiritualia tanquam 
ad finem.' Panorm. c. 13, X. 2, i. 

19. To this effect already Deusdedit, Contra invasores, lib. iii. The sphere 
sect. 5 et 6 § 13, p. 108. Petri Exceptiones, i. c. 2, in Savigny, °^ ^^"P" 
Gesch. des r. R., 11. 322. Dictum Gratiani upon c. 6, Dist. 10. defined by 



112 Political Theories of the Middle Age. 



Spiritual Petr. Blesensis jun. Specul. c. i6. Vincent. Bellovac. lib. vii. & 33. 

Law. Aug. Triumph, i. q. i, a. 3, and 11. q. 44, a. i — 8. Alv. Pelag. 

I. a. 44. Ockham, Octo qu. m. c. 9. 

Subjection 20. See Gregor. VII., lib. i, ep. 63 ; lib. 4, ep. 2, ep. 23, ep. 24; 

"^ral™ ^^^* ^' ^P- ^^ (especially p. 464). Cardinal Deusdedit, Contra 

Power. invasores, lib. ill. per totum. Honorius Augustod., Summa gloria, 
p. 1265 : 'iure regnum sacerdotio subiacebit' (above Note 17). Joh. 
Saresb. v. c. 2, p. 252. Thorn. Cantuar., epist. 177 — 184, p. 648 flf. 
Ivo of Chartres, ep. 106, Henrico Anglorum Regi, p. 125 : 'regnum 
terrenum coelesti regno, quod Ecclesiae commissum est, subditum 
esse semper cogitatis ; sicut enim sensus animalis subditus debet esse 
rationi, ita potestas terrena subdita esse debet ecclesiastico regimini ; 
et quantum valet corpus nisi regatur ab anima, tantum valet terrena 
potestas nisi informetur et regatur ecclesiastica disciplina; et sicut 
pacatum est regnum corporis cum iam non resistit caro spiritui, sic 
in pace possidetur regnum mundi, cum iam resistere non molitur 
regno Dei ': You (King Henry) are not dominus, but servus servorum 
Dei; be their protector, non possessor. Comp. ep. 60, p. 70 ff. 
If Ivo here and elsewhere (ep. 214, p. 217 ff., and ep. 238, p. 245) 
expressly states that the ecclesia can only flourish if Priesthood and 
Realm be united, while every discord between the two powers must 
rend the church, and if he exhorts the Pope (ep. 238) to do his part 
in the production of unity, — with a saving for the majesty of the 
apostolic see, — still the legal relation of Realm to Priesthood is, in 
Ivo's eyes, a complete subjection. — To the same effect Alex. 
Halensis, in. q. 40, m. 2. Rolandus (Alex. III.), Summa, p. 5, D. 10. 
Innocent III., in c. 6, X. i, 33. Thom. Aquin. De reg. princ i. c. 14 
(Romano pontifici omnes reges populi Christ, oportet esse subditos, 
sicut ipsi domino Jesu Christo); Opusc. contra impugiL relig. 11 
c. 4, concl. I ; Summa Theol. 11. i, q. 60, a. 6, ad. 3 (potestas 
saecularis subditur spirituali, sicut corpus animae) ; in lib. 11. Sent. d. 
44; Quodl. 12, q. 13, a. 19, ad. 2. Aegid. Rom. De pot. eccl. i. 
c. 7 (two swords, like soul and body, quorum unus alteri debet esse 
subiectus); 11. c. 4, 10 and 12. Boniface VIII., in Unam Sanctam : 
Oportet autem gladium sub gladio esse et temporalem auctoritatem 
spirituali subiici potestati. August. Triumph, i. q. i, a. i and 3, 
II- q- 36, 38, 44, a. I (Papa est medius inter Deum et populum 
Christianum;...medius inter Deum et imperatoremj...a quo impera- 
tori respublica commissa). Alv. Pel. i. a. 13, 37 q — r, 56, 59. 
And. Isern. I. Feud. 29, pr. nr. 2. Barthol. Soc. in. cons. 99, nr. 18. 
Cardin. Alex. c. 3, D. 10. The Commentary on c 6, X. i, 33. 
Comp. also Hofler, Kaiserthum, 57 ff., 80 ff., 137 ff. — Comparisons 



Notes. 113 

with gold and lead, heaven and earth, sun and moon, soul and body, 
frequently recur, and the last of these, if taken in earnest, must make 
for an unconditional subjection of the State, as in the above-cited 
words of Ivo. 

21. See John of Salisbury in Note 14 and Thomas of Canterbury Temporal 
in Note 10. Summa Parisiensis (above Note 12) : imperator vicarius ^"^^''^^ 
eius. Ptol. Luc. iii. c. 17: imperium ad exequendum regimen of Church 
fidelium secundum mandatum pontificis ordinatur, ut merito dici "ope- 
possint ipsorum executores et cooperatores Dei ad gubernandum 
populum Christianum. Aegid. Rom. Da pot. eccl. c. 5. Hostiensis 

upon c. 8, X. 3, 34, nr. 26 — 7. August. Triumph, i. q. i, a. 8 (princes 
are quasi ministri et stipendiarii ipsius papae et ipsius ecclesiae, they 
receive an office and are remunerated de thesauro ipsius ecclesiae) ; 
q. 44 and 45 ; 11. q. 35, a. i, and 38, a. 2 — 4 (the Emperor is 
minister papae); I. q. 22, a. 3 (the Emperor is likened to a pro- 
consul). Alv. Pel. I. a. 40 : as the Church, which is Cosmopolis, 
can give (by baptism) and take away the right of citizenship, so she 
distributes offices among her citizens ; sacerdotal consecration and 
unction first give temporal lordship over God's holy people, and 
these priestly acts must be regarded as approval and confirmation ; 
a. 56 B and p; also a. 13; a. 40 k (sicut anima utitur corpore ut 
instrumento,...sic papa... utitur officio imperatoris ut instrumento) ; 
a. 52 — 54 (all worldly and ghostly offices are 'gradus in ecclesia'). 
The Clerk in Somn. Virid. 11. c. 163. Comp. in Joh. Par. prooem. 
the confutation of the statement that praelati et principes are only 
tutores, procuratores and dispensatores of the Pope's verum dominium 
temporalium, 

22. Apparently GofiTredus abbas Vindocinensis (Migne, vol. 157, The High 
p. 220) is the first allegorically to explain the two swords mentioned £ [ • . 
in Evang. Lucae, c. 22, v. 38, as being material and spiritual swords, of the Two 
which are to be used in defence of the Church ; but he only uses this Swords, 
allegory to support a demand for an amicable union between the 

two powers. Gerhoh Reichersp. (Migne, vol. 194, p. m) goes no 
further. Bernard of Clairvaux (ep. 256, ann. 1146, in Migne, vol. 
182, p. 463) seems the first to explain the allegory in the manner 
that was afterwards adopted by the Church's champions: Petri 
uterque est, alter suo nutu, alter sua manu : see also De consider. 
IV. c. 3, in Migne, vol. 186, p. 776. Then already with John of 
Salisbury, Polycrat. iv. c. 3, the Prince receives one sword from the 
hand of the Church ; the Church has that sword (habet et ipsum), 
but uses it ' per principis manum.' So S. Anselm, Comm. in Matth. 
c. 26. Among the Popes, Innoc. III., Gregor. IX., Innoc. IV., and 

M. 8 



114 Political Theories of the Middle Age. 



Emperors 
and Tem- 
poral 
Rulers as 
Pope's 
Vassals. 



Bonif. VIII. (Unam sanctam, also speech in the Roman synod, in 
Hefele, KonciUengesch., vi. § 689) raised this theory to the rank of 
an official doctrine. It was conceded by some of the Emperors, such 
as Otto IV., Frederick II., Albert (1302 and 1303); see Hofler, 
pp. 86, 134. Thenceforward it was a self-evident axiom for the 
Canonists, and Prosdocimus de Comitibus, nr. 55, can reckon the 
two theories of the Two Swords as ' a difference between the leges 
and the canones' Comp. Glossa Ord. on c. i, Dist. 22. v. coelestis: 
argumentum quod papa habet utrumque gladium, soil. spir. et temp. 
(The text that is being glossed, from Petrus Damianus, Opusc. iv. admits 
of various interpretations : — beato aeternae vitae clavigero terreni 
simul et coelestis imperii iura commisit.) Quotation from Alanus in 
Lup. Beb. c. 9, p. 368. Gloss. Ord. on c. 13, X. i, 2: verum execu- 
tionem gladii temporalis imperatoribus et regibus commisit ecclesia; 
quaedam enim possumus aliis committere quae nobis non possumus 
retinere.' Commentaries on c. 34, X. i, 6, c. i, X. 1, 7, c. 13, X. 2, 
I, c. 10, X. 2, 2 by Innocentius, Zabarella, Ant. Butrigarius, Felinus 
and Decius. Thus e.g. Panormitanus holds that the imperium is 
•non immediate a Deo, sed per debitam et subalternatam emana- 
tionem a vicario Christi Jesu, apud quem sunt iura coelestis et terreni 
imperii': in this sense are to be understood the words 'non est 
potestas nisi a Deo'; but we may also apply them to mean that 
according to the will of God one Sword belongs to temporal rulers 
•respectu exercitii.' See further Aegid. Rom. De pot. eccl. I. 
c. 7 — 9. Schwabensp. c. i. Aug. Triumph. I. q. i, a. i, and 11. q. 36, 
a. I — 4. Alv. Pelag. i. a. 13, 37 s (dominus legitimus...utilis) and z, 
40 K, 59 D (the Pope is always primum movens, even when the 
Prince is proximum movens), 11. a. 57 ; Konr. Megenb. in Hofier, 
aus Avignon, p. 24 ff. Petrus a Monte, in Tr. U. J. xiii. i, f. ^52 ff. 
Petrus de Andlo, 11. c. 9. Turrecremata, Summa de eccl. iiic. 114. 
Naturally a few legists take the same view, e.g. Bartolus, 1. t, § i. 
Dig. 48, 17, and Paul. Cast. 1. 8, Dig. i, 3, nr. 6; and some feudists, 
e.g. Andr. de Isern. 11. Feud. 5 5. nr. 87. All the arguments /r(? 
and con are collected by Ockham, who distinguishes with exactitude 
various nice shades of the doctrine 'Imperium a Papa': see Octo 
qu. I. c, 2, 18 — 19 and on the other side c. 6 — 17 ; also see 11. 
c. I — 4, 12, IS, and on the other side c. 6 — 14; viii. c. i; Dial. iii. 
tr. 2, 1. I, c. 18 — 25. 

23. Comp. e.g. Innoc. IV. upon c. 10, X. 2, 2, nr. i ; Thom. 
Aquin. Quodl. 12, q. 13, a. 19, ad 2: Reges sunt vassalli ecclesiae. 
Clement V. in Clem. un. de iureiurando, 2, 9, and the commentaries 
thereon. Aug. Triumph, i. q. i, a. i; 11. q. 38, a. 4; Alv. Pel. i. 



Notes. 1 1 5 

a. 13 B, a. 40, a. 57 ; Konr. Megenb., in Hofller, aus Avignon, p. 24ff.; 
Petr. Andl. 11. c. 2 ; Panorm. c. 13, X. 2, i. 

24. According to S. Bernard, De consider, iv. c. 3, the temporal The 
sword is to be wielded ' ad nutum sacerdotis et ad iussum im- Temporal 
peratoris.' Gregory IX. (Raynald, ann. 1233, nr. 1) repeats this at the 
but omits the last half of the phrase. Aegid. Rom., De pot. eccl. i. IJisposal 
c. 8 — 9, says that the Pope has both swords, ' sed decet Ecclesiam Church, 
habere materialem gladium non ad usum sed ad nutum.' See also 

Notes 20 and 21. 

25. Innocent III. is the first sharply to distinguish between Direct use 

(1) the normal use that is made of the spiritual sword when the acts r^ h 
of temporal rulers are subjected to ecclesiastical jurisdiction, and of the 

(2) the exceptional cases in which the Pope directly uses the temporal J^™^'^*' 
sword. See in particular c. 13, X. 2, i (lib. 7, ep. 42, ann. 1204) on 

the one side, and on the other c. 13, X. 4, 17. So also Innocent IV.: 
compare the letter of 1245 in Hefele, v. looi: nee curabimus de 
cetero gladio uti materiali, sed tantum spirituali contra Fridericum. 
Encyclica of 1246: spiritualiter de temporalibus iudicare. Innoc. 
Comm. upon c. 13, X. 2, i. — Hostiensis, Summa, 4, 17 : sicut contra 
et super et praeter naturalem et humanam rationem Filius Dei incar- 
natus et natus est, sic iurisdictio spiritualis, quam Ecclesiae reliquit, 
contra et super et praeter naturam iurisdictionis trahit ad se princi- 
palem iurisdictionem temporalem, si id, quod de iurisdictione spirituali 
est, in ea incidit. Petrus Paludanus, De causa immediata eccl. pot, 
a. 4: Papa est superior in spiritualibus et per consequens in tempora- 
libus, quantum necesse est pro bono spirituali. — Johan. Andr. c. 13, 
X. 4, 17: temporalia per quandam consequentiam. Turrecremata, 
II. c. 1 13 ff. — On the other hand, in the argumentation of Gregory VII. 
lib. 4, ep. 2, and lib. 8, ep. 21, the right that he claims of deposing the 
Kaiser is thoroughly fused with a right to excommunicate the Kaiser. 
Similarly, those later writers, who will hardly allow any independence 
to the temporal sword, do not clearly distinguish between the 
ordinary use of spiritual power in the correction of Rulers and an 
extraordinary use of temporal power by the Pope. See e.g. Joh. 
Saresb. Polycr. iv. c. i — 4 j Aegid. Rom. De pot. eccl. i. c. 2 — 4, 
II. c. 4 and esp. in. c. 4 — 8 ; August. Triumph, i. q. i, a. i (institui, 
regulari et ordinari si bona sit, condemnari et iudicari si bona non 
sit); Alv. Pel. i. a. 37, 56, 58; Cler. in Somn. Virid. 11. c. i8, 22, 24, 
26, 28, 32, 69, 139. 

26. So Innocent III. in c. 13, X. 4, 17 : there should be no The 
invasion into ius alknum ; what is Caesar's should be given to f^^^^^ 
Caesar. And to the same effect what is said of the separation of respect the 

8—2 



ii6 Political Theories of the Middle Age. 



Rights of 
Rulers. 



Extra- 
ordinary 
Use of 
Temporal 
Power 
by the 
Church. 



Transla- 
tion of the 
Empire 
by the 
Pope. 



Translatio 
Imperii. 



Papal 
Appoint- 
ment of 
Kaisers 
and Kings. 



the swords and their duty of mutual aid : Reg. sup. neg. Imp. ep. 2, 
vol. 216, p. 997, and ep. 179, p. 1162, also lib. 7, ep. 54 and 79, 
vol. 215, p. 339 and 361, lib. 10, ep. 141, p. 1235, lib. 11, ep. 28, 
p. 1358. Innocent IV. Comment on 13, X. 4, 17: nam temporalia 
et spiritualia diversa sunt, et diversos iudices habent, nee unus iudex 
habet se intromittere de pertinentibus ad aliuni, licet se ad invicem 
iuvare debeant. — Hostiensis, Summa, 4, 17: iurisdictiones distinctae; 
...nee debet se intromittere de subditis Imperatoris, nisi forte in 
casibus. — Gloss. Ord. upon c. 13, X. 4, 17; and upon c. 13, X. 2, i: 
non ergo de temporali iurisdictione debet intromittere se Papa nisi 
in subsidium. Ant. Butr. on c. 13, X. 4, 17; Joh. Andr. on c. 13, 
X. 2, i; Panorm. on c. 13, X. 2, i; Turrecremata, 11. c. 113. 

27. S. Bernard, De consider, i. c. -6: ubi necessitas exigit... 
incidenter... causa quidem urgente. — Innocent III. in c. 13, X. 4, 17: 
the power may be used casualiter if causae multum arduae require it. 
(As to casualiter and the variant camaliter, see Molitor, p. 61 fif.) — 
Gloss. Ord. 1. c: in subsidium. Host, upon c. 13, X. 2, i; 
Thom. Aquin. Sum. Theol. n. 2, q. 60, a. 6, ad. 3 ; Joh. Andr. c. 13, 
X. 2, i; Ant. Butr. c. 13, X. 4, 17: non regulariter; Panorm. 1. c. : 
in a case of necessity, if there are ardua negotia. 

28. Gregory VII. lib. 8, ep. 21, ann. 1080, p. 464: quapropter 
quos sancta Ecclesia sua sponte ad regimen vel imperium deliberato 
consilio advocat, (iis) non pro transitoria gloria sed pro multorum 
salute, humiliter obediant. — S. Bernard, ep. 236; Landulf Col. De 
transl. Imp., c. 8; Ptol. Luc. in. c. 10; Aug. Triumph. 11. q. 37, a. 5: 
regnorum omnium translatio auctoritate papae facta fuit vel alicuius 
qui ipsum figurabat: e.g. Samuel, Daniel and so forth. Also q. 46, 
a. 3 : est Dei vice omnium regnorum provisor. — Konrad v. Megenburg, 
in Hofler, aus Avignon, p. 24 f. : the transfer should be made in 
accordance with divine law, not arbitrarily. — Panorm. c. 13, X. 2, i: 
hinc est quod imperium transferre potest de certo genere personarum 
ad aliud genus. — Turrecremata, 11. c. 115; Ockham, Octo qu. iv. c. 4, 
and VIII. c. 3; Dial. in. tr. 2, 1. i, c. 20. 

29. Innocent III. in c. 34, X. i, 6, and all the Commentaries 
upon this canon. Ptol. Luc. iii. c. 18; Land. Col. c. 3 — 8; Aug. 
Triumph. 11. q. 37, a. i — 4. Alv. Pel. i. a. 13 F and 41; Andr. 
Isern. prooem. Feud. nr. 37; Petr. Andl. i. c. 13 — 15, n. c. 3; cf. 
Ockham, Octo qu. iv. c. 5. 

30. See above Notes 17 and 21, and below Note 34. Already 
Gregory VII. claims this right, as appears from c 3, C. 15, q. 6, a 
passage from a letter of his (ann. 1080) to Bishop Hermann of 
Metz: Alius item Romanus Pontifex, Zacharias scilicet, regem 



Notes. 117 

Francorum non tam pro suis iniquitatibus, quam pro eo, quod tantae 
potestati erat inutilis, a regno deposuit, et Pipinum, Karoli impera- 
toris patrem, in eius loco substituit, omnesque Francigenas a 
iuramento fidelitatis, quod illi fecerant, absolvit. In the two letters 
of 1077, lib. 4, ep. 23 and 24, p. 275 ff., he claims to decide a 
disputed succession to the throne, and charges all men to obey him 
whom he confirms in regia dignitate. 

31. As to the supposed institution of the Prince-Electors by The Pope 
Gregory V. and his right to institute them, see Land. Col. c. 9; Cem^n 
Ptol. Luc. III. c. 10 and 19; Aug. Triumph. 11. q. 35 ; Alv. Pelag. i. Electors. 
a. 13 F, 21, 27 z and Dd, 40 e— f, 45 ; Zabarell. c. 34 § verum, X. 

I, 6, nr. 8. Ptolemy of Lucca, Augustinus Triumphus, and Alvarius 
argue that the Church may at any time for good and reasonable 
cause change the mode of election, give the right of election to 
another nation, or itself exercise the right, institute an hereditary 
empire etc. Augustinus and Alvarius say straight out that the Pope 
elects the Emperor by the agency of the Prince-Electors (per eos), 
for a principal may choose instruments and ministers as he 
pleases. 

32. Honorius Augustod. p. 1264; Imperator Romanus debet db ThePope'* 
Apostolico eligi consensu principum et acclamatione plebis, in caput gi"/" "^* 
populi constitui, a Papa consecrari et coronari. Innoc. III. in c. 34, of an 

X. I, 6. Innoc. IV. Compost., Joh. And., Zabar., Panorm., Ant. '^"P"°'^- 
Butr., Felin., Decius on this canon. Aug. Triumph. 11. q. 38 — 41. 
Alv. Pel. I. a. 13, 40, 43, 57 ; Petr. de Andlo, 11. c. 2, 4—7; Marcus, 
I. q. 938; Turrecrem. 11. c. 115. 

33. Innoc. IV. upon c. 10, X. 2, 2, nr. i — 2, and c. 7, X. i. The 

10, nr. 3: the Pope appoints a curator for a king incompetent to rule. S°P*'?. 
^ " ,, „, , ., Guardian- 

Durant. Spec. I. i de legato § 6, nr. 15 and 17. Andr. Isern. 11. ship of the 

Feud. 55, nr. 87. Alv. Pel i. a. 13 f, 37 s, 56 n. Petr. Andl. n. ™'=*°' 

c. 10 (but it is otherwise under the Golden Bull). Hier. Zanetinus, 

diff. nr. loi. Turrecrem. 11. c. 115. This principle was practically 

applied by Clement V. See also Ficker, Forschungen, 11. 458 ff. 

34. Gregory VII. endeavoured, not only practically to use these The 
powers, but also theoretically to deduce them from the superiority of P°pe's 
the spiritual power, since the bearer of the keys can be judged by depose 
none and himself must judge the temporal rulers : Nescitis quia ^"I^J^ 
angelos iudicabimus ? quanto magis saecularia ! He appealed to the Subjects 
deeds of his predecessors, more particularly Gregory I. and Zacharias. J^"™ *^ 
See lib. i, ep. 55*, p. 175, lib. 4, ep. 2 and 24, lib. 8, ep. 21 ; c. 3, Fealty. 
C. 15, q. 6 (above Note 30), c. 4 eod. He is followed in this by 
Gregory IX., Innocent IV., John XXII., Nicholas V, Comp. 



ii8 Political Theories of the Middle Age. 

Dictum Gratiani P. ii. C. 15, q. 6. Joh. Saresb. Polycrat. iv. c. 3, 
p. 213: dignitatem principis conferre et auferre, and v. c. 6. Landulf. 
Col. c. 4. Thom. Aq. Summa Theol. 11. 2, q. 10, a. 10, and q. 12, a. 2. 
Innoc. IV. on c. 27, X. 2, 27, nr. 6. Aegid. Rom. De pot. eccl. 

I. c. 2 — 5. Host. c. 8, X. 3, 34, nr. 26 — 27. Dur. Spec. 1. c. nr. 17. 
Aug. Triumph, i. q. i, a. i and 3 ; q. 6; q. 26, a. 4; q. 46, a. i; 

II. q. 40, a. I — 4; q. 45, a. 3; q. 46, a. i — 2. Alv. Pel. i. a. 13 b, 21, 
37 R, 40 F (eccl. Rom. cuius est regna transferre et reges de sua sede 
deponere) ; 56 e (duty of protecting nations against the tyranny of 
kings) ; 11. a. 29 and 30. Zabar. c. 34 § verum, X. i, 6, nr. 7. 
Panorm. eod. c. nr. 7 — 9, and c. 13, X. 4, 17 (deponit causis 
exigentibus). Phil. Dec. c. i, X. 2, 19, nr. 8. Some legists took this 
side: Bartol., 1. 11, C. i, 14, nr. 4; Baldus, ead. 1. nr. 6. 

ThePope's 35- See e.g. Aug. Triumph. 11. q. 45 and 46; the Clerk in Somn. 
RuTers°™ Virid. II. c. 76 fF., 92 ff., 163.— It is true that some special claims 
other than could be made against the Kaiser (see e.g. Alv. Pelag. i. a. 42 g and 
the Em- ^^ ^^ ^^ because he was an elected prince, and because there was 
'specialis coniunctio inter imperatorem et papam'; and the im- 
perialist partizans point out that their adversaries would set the 
Emperor below other Monarchs (see e.g. Ockham, Dial. in. tr. 2, 1. r, 
c. 20). Still in the main Frederick II. was quite right when in his 
famous letter he laid stress on the solidarity of the interests of all 
temporal rulers who were equally threatened by the Pope. See 
Petr. de Vin. ep. i. c. 2, 3, 34. 
Remin- 36- For Abp. Reinald of Koln in 1162 (Watterich, Pont. Rom. 

of tr^^ vitae II. 530 and 533) there was still life in the thought that the 
Subjection Church of Rome is the Empire's church, and the Pope is a bishop of 

of Church the Empire. Then in cent. xiv. it begins to be common for the 
to Realm. . ,..,,. , 

opponents of ecclesiastical claims to appeal to history and to speak 

of the position held by the church under the old Roman Emperors, 

the Frankish Emperors, the Ottos and Henry III. 

37. Ockham, Octo q. in. c. 3 and 8, Dial. iii. tr. 2, 1. r, c. i, and 

1. 3, c. 17 and 22. Comp. also Anton. Rosell. i. c. 61 — 63. 

Church 38. This had previously been the teaching of the Church herself. 

are co'.^'* Henry IV. (ann. 1076 in M. G. L. 11. p. 48) is the first to oppose it 

ordinate, to the growing ecclesiastical claims. Pet. Crassus, p. 28 ff., fully 

develops it : God instituted two laws, two peoples, two powers among 

Mankind. So Wenrich, p. 214 ff. ; Wido, De scismate, lib. 11.; 

Walram Naumb., De unitate eccL, lib. i. ; Sigebert episc adv. 

Paschalem, ann. 1103; Tractatus de investitura, ann. 1109. Appeals 

to it are made by Frederick I. (e.g. ann. 1152 in Jaffd Mon. Corb. 

p. 500 and ann. 1157, M. G. Leg. 11. p. 105; comp. ep. Wibaldi, 



Notes. 119 

ann. 1152, in Jaffd, 1. c. p. 502), Frederick II. (e.g. Pet. de Vin. ep. 

I. c. I, 9, 31, V. c. i) and later Emperors. It is adopted by most of 

the Legists ; they follow in this the glosses, especially that on Auth. 

coll. I. 6, prooem. v. conferens generi. Many of the older Canonists 

held the same opinion, connecting it with the words of Gelasius and 

Nicholas I. which appeared in the Decretum as c. 8, D. 10, c. 6, 

D. 96, c. 10, D. ead. Among them are Stephanas (above Note 8) 

■ and Huguccio (as to whom see Lup. Beb. c. 9, and against him Aug. 

Triumph. 11. q. 36, a. 4). So also some of the older Theologians, 

such as Peter Damiani (Opusc. iv. in Migne, vol. 145, p. 71 — 72 and 

86 — 87, lib. 4, ep. 9 ad Firm. ep. and lib. 7, ep. 3 ad Henr. Reg. 

p. 121) and Gerhoh of Reichersberg (Syntagma, 180 — 3). Then it 

is defended by Hugo Floriac. (i. c. 12, p. 43 ff., and 11. p. 46 if., and 

65); Otto Frising. ; Eberh. Bamberg, (ob. 1172, see Hofler, Kaiser- 

thum, p. 61); Eike v. Repgow in the Sachsenspiegel, I. a. i; Johann 

V. Buch, Gloss, on Sachsensp. i. a. i, and iii. a. 57, § i ; Vridank, 

p. 152, V. 12 — 19, and other German poets. — Then Dante (Mon. m. 

c. 16) endeavoured to give it a deeper philosophical foundation. To 

biblical, historical and legal, he added physical and metaphysical 

arguments, for he endeavoured to show that to the double nature and 

double end of man there must correspond a duplex directivum 

ordained by God. Comp. also Joh. Paris, c. 4 — 10: potestates 

distinctae et una in aliam non reducitur. Lup. Bebenb. c. 10: pot. 

distinctae et divisae. Quaestio in utramque part. p. 96 — 102. 

Ockham, Octo qu. I. c. i, 3 — 5 and 20 (where a distinction is drawn 

between two opinions, viz. that the two powers cannot be united, and 

that, though they could be united, an ordinance of God forbids their 

union); Dial. iii. tr. 2, 1. 2, c. i — 4. Dispu^ int. mil. et cler. 

pp. 667 — 682. Miles in Somn. Virid. I. c. i — 16 and 39 ff., 11. c. 116: 

Deus duas iurisdictiones distinxit, duos populos, duas vitas, duo genera 

mihtum. Petr. de Aliac. in Gerson, Op. i. 678. Gerson, iv. 650. 

Randuf, De mod. un. c. 15. Theod. a Niem, De schism, iii. c. 7 j 

Priv. et iura imp. p. 785. Nic. Cus. in. c. i — 2, 5, 31, 41. Aen. 

Sylv. c. 7. Greg. Heimb. Admon. i. p. 557 — 563. Ant. Ros. i. 

c. 20 — 38 and 41 : Deus duos constituit vicarios. Almain, Expos. 

on Qu. I. c. 6 — 7, declares the second of the two opinions discussed 

by Ockham to be the true one. 

^9. Pet. Crassus, p. 28 ff. Sachsensp. i. a. 3, § 3. Joh. Paris. Temporal 
„„ 1 -Law IS not 

c. 18, p. 195. Ockham, Octo qu. I. c. 15 and iii. & 2. bomn. dependent 

Virid. I. c. 70 ff. and 103 ff. Franc. Curt. sen. Cons. 43, nr. 4. on the 

40. See esp. Pet. Crassus, p. 26: divinitus datum. Wenrich in 

Martene, i. p. 220. Emp. Frederick I. ann, 1157 and 1159, in 



I 



20 Political Theories of the Middle Age. 



Imperium M. G. L. pp. 105, 118 : a solo Deo itnperium. Cinus upon 1. i, 
non de- ^ 2—3, and Auth. cassa on 1. 12, C. i, 3, nr. 2 : Imp. et 

pendet ab ' ' *" ■ t-. t-> -o 

ecclesia. Papa aeque principaliter sunt constituti a Deo. Damasus, isroc. m. 
III. br. 19. Dante, Mon. lib. iii. throughout. Quaestio in utr. part, 
a. I, 2, 3, 5- Joh. Paris, c. 5 : et ambae oriuntur ab una suprema 
potestate, scil. divina, immediate; c. 10, 15 — 22. Marsil. Pat. Def. 
pac. II. c. 27. Declarations at Lahnstein and Rense, in Ficker, zur 
Gesch. des Kurv. v. R. p. 699 ff. Miles in Somn. Vir. i. c. 57—69. 
74 — 78, 88 — 102, 146 — 163. Disput. int. mil. et cler. p. 677. 
Baldus, 1. I, C. 1, I, nr. i — 12; sup. pace Const, v. 'hoc quod non,' 
nr. 8 — 13. Joh. ab Imola, 1. i. Dig. de V. O. nr. 22 — 27. Joh. 
And. Nov. s. c. 13, X. 4, 17. Theod. a Niem., De schism, in. c. 7; 
Priv. aut iur. imp. p. 785. Nic. Cus., Cone. cath. in. c. 3 and 5. 
Ant. Ros. I. c. II, 20 — 38, 47 — 49 and 56. Declarations of 
Frederick I. (Hofler, p. 64 ff.) and Frederick II. (in Pet. de Vin. ep. 
I. c. I, p. 93 ; c. 9, p. 122 ; c. II, p. 126 ; c. 25 ; in. c. 4, p. 68 ; v, c. 
i). Passages from the poets in Hofler, p. 105 — 7. For intermediate 
opinions, which he rejects, see Joh. Paris, c. 11 j also Lup. Bebenb. 
c. 9. Ockham elaborately discusses the many possible shades of the 
doctrine Imperium a Deo : Octo qu. n. c. i, 3, 5 ; iv. c. 8 — 9 ; 
VIII. c. 5; Dial. III. tr. 2, 1. i, c. 25 — 28. 

Imperial- 41. A feudal relationship between Emperor and Pope is unani- 

Papal mously denied : the Kaiser only swears to defend : Lup. Bebenb. 

Claims. c. 9, p. 368 — 70, and c. 13, p. 391 — 4; Ockham, Octo qu. 11. c. 11 ; 
VIII. c. 1 and 5 ; Dial. in. tr. 2, 1. i, c. 21 ; the definition of rights in 
Ficker, Kurverein, p. 710; Ant. Ros. I. c. 9, 47, 71. On the other 
hand, but few men flatly deny the power of the Pope to act as 
supreme judge over the Emperor or allow only purely spiritual 
censures ratione peccati: among the few are Frederick II. (Petri de 
Vin. ep. I. c. 3) and Marsilius. Others admit that there is such a 
power to be used in extraordinary cases, or explain the acts of 
jurisdiction which the Popes have really performed as the outcome of 
voluntary submission. Of this more below. There is much hesita- 
tion over the Translatio Imperii [from Greeks to Germans] and its 
legal justification: also over the part played by the Pope in the 
Election of an Emperor. Marsilius (11. 26) denies to the Pope any 
right of examining the election. Usually some right of deciding, for 
certain ecclesiastical purposes, who is de facto Emperor is allowed to 
the Pope. See e.g. Lup. Bebenb. c. 10, p. 370 — 4; Ockham, Octo 
qu. II. c. 10; Dial. in. tr. 2, 1. i, c. 21 ; Ant. Ros. I. c. 48. Lupoid 
v. Bebenburg (c. 12) goes further, and concedes a power to solve 
doubts in cases of double election, since the law of God gives the 



Notes. 1 2 1 

Pope power to decide dubia iuris, and the law of necessity gives him 
power to decide dubia fadi. He even maintains (c. ii, 13 and 16) 
that the coronation is no bare ceremony, for, though the Election 
gives the Elect imperial power over the lands held by Charles the 
Great before the Translatio Imperii, it is the coronation which makes 
him Emperor of the rest of the world. This opinion (see against 
it Ockham, Oct. q. iv. c. i — 3 and 7) failed to obtain supporters. 
At any rate after the Kurverein [meeting and declaration of the 
Electors] at Rense, the imperialist party held that the unction and 
coronation were mere solemnities, which played no greater part in 
the case of the elected emperor than that which they played in the 
case of an hereditary king ; they in no way attested a papal overlord- 
ship. Comp. Joh. Paris, c. 19; Articuli of 1338 in Bohmer, Pontes 
IV. p. 594, a. 2 ; Documents in Ficker, Kurverein von Rense, 
pp. 699 ff. esp. p. 710, a. 4; Marsil. Pat. 11. c. 26 and De transl. 
imp. c. 12; Ockham, Octo qu. 11. c. lo; v. c. i — 10; vi. c. i — 2; 
VII. c. I — 2 ; VIII. c. I ff. ; and Dial. iii. tr. 2, 1. 1, c. 21 ; Somn. 
Virid. I. c. 166—9; Joh. de Anan. c. 6, X. i, 6, nr. 7. (At a later 
time the Church Party had recourse to the supposition of a prwi- 
legium bestowing on the Emperor Elect the ius administrandi ante 
coronationem.) Ecclesiastical claims to a guardianship of the Empire 
were disputed by Marsilius and Ockham; but the latter admitted 
that they might perhaps be founded upon an audoritas proceeding 
from the Empire itself: Octo qu. 11. c. 14 ; and Dial. iii. tr. 2, L i, 
c. 22. 

42. The principle that Christ's kingdom is not of this world was The 
interpreted in numberless ways by the anti-clerical opposition. The ^ purely'' 
commonest exposition comes to this, that ex iure divino the Church Spiritual 
has no worldly iurisdidio, and as regards property can only demand ^* '°' 
so much as is necessary for her support and divine service ; but that 
she is capable of acquiring by title of Positive Law (ex concessione 
et perraissione principum) a wider field of lordship and ownership, 
and also may in case of necessity exercise worldly rights. Comp. 
Joh. de Paris, prooem. and c. 13 — 14. Ockham, Octo q. i. c. 6, 
ad. 2, 7 — g, 10, II. c. 6, iii. c. i — 2, viii. c. 5 ; Dial. I. 6, c. 3, iii. 
tr. I, 1. I, c. 9, 13, 15, 1. 2, c. 2 and 29, tr. 2, 1. i, c. 19 and 24. 
Michael Cesena, ep. d. a. 1333 (Goldast, 11. 1238 ff.). Quaest. in 
utramque, a. 3. Disput. p. 677 ff. Somn. Virid. i. c. i — 16, 11. c. i ff. 
and 303 ; Petr. de Aliac, i. 667 and 674 ff. ; Greg. Heimb. a. 1433 
(Gold. I. 560 ff. and 11. 1604 ff.); Ant. Ros. c. 20 — 38 and 50. 
These principles in themselves remained unaffected by the ever 
renewed complaints of the growing worldliness of the Church (e.g. 



1 22 Political Theories of the Middle Age. 



Imperial- 
ists con- 
cede Su- 
perior 
Dignity 
of the 
Church. 



The 

Celestial 
Head gives 
sufficient 
Unity to 
the two 
Powers. 



Church 
and State 
in co- 
operation. 



Dante, ii. c. 12 — 13), and by the dispute among the Franciscans 
touching Evangelical Poverty. Still hardly ever were there wanting 
extremer opinions which flatly denied the Church's competence to 
wield worldly power or to hold any — or any unnecessary — property. 
This is the case of Marsilius, who therefore (but in this he stands nearly 
alone) denies to the Church any ' coactive jurisdiction,' and therefore 
any coercion of consciences, even in purely spiritual matters. See 
also Wyclif, Supplem. Trialogi, p. 407 ff., and art. 17; Hus, Determ. 
de abl. temporal, a clericis. 

43. Comp. Sachsensp. I. a. 1. Dante, in. c. 16 in fine : despite 
the separation, the Kaiser should do reverence to the Pope as a 
first-born son to a father : mortalis ilia felicitas quodammodo ad 
immortalem felicitatem ordinatur. Joh. de Paris, c. 15 and 18. 
Ockham, Octo qu. I. c. 3 and 14. Somn. Virid. I. c. 83 — 84. Baldus, 
1. II, C. I, 14, nr. 4, andprooem. Dig. nr. 17 — 19: the Pope superior 
to the Emperor, non simpliciter, but in qidbusdam. Similarly Joh. de 
An. c. 6, X. I, 33, nr. 6. Comp. Heinrich v. Langenstein, in Hartwig, 
I. p. 52, n. I. Ant. Ros. i. c. 63. In this sense it was possible to 
accept the comparison with Soul and Body : better still, that with 
Sun and Moon, both of which were created by God, each having its 
own powers and duties, though the orb of day was the higher. 

44. Thus already Hugo Floriac. I. c. 2, and 11. pp. 46, 65. 
Dante, in. c. 12 : true it is that Emperor and Pope must ad unum 
reduci; but while, if we consider them as homines, the measure will 
be that of the ' optimus homo, qui est men sura omnium et idea,' if 
we consider them as office-holders, ipse Deus is the communis unitas 
which is super-posed above their relationes and differentialia. Joh. 
Paris, c. 18 — 19 : una est ecclesia, unus populus, unum corpus 
mysticum; but the unity rests in Christ, and under Him the 
Priesthood and Realm are two distinct offices: as distinct as the 
offices of teacher and physician when held by one man. Quaest. in 
utramque p. 103, ad. 4 — 5. Ockham, Octo qu. i. c. i and 18 ; DiaL 
HI. tr. I, 1. 2, c. I and 30. Miles in Somn. Virid. I. c. 38, 46, 48, 
102, II. c. 102, 305 — 312. Anton. Ros. i. c. 42. 

45. It need hardly be said that even the Popes and their 
supporters often teach that amicable relations between Priesthood 
and Realm are a necessary condition for the weal of Christendom. 
Thus Gregory VII. with great emphasis: lib. i, ep. 19, ann. 1073, 
p. 302. Ivo of Chartres (above. Note 20). S. Bernard, ep. 244, 
p. 440 ff. ; De consid. 11. c. 8. Innocent III. (above, Note 26). 
Innocent IV. (above. Note 26). But what is peculiar to the 
opponents of Church-Sovereignty is the doctrine that in this world 



Notes. 1 23 

the Unity of the two powers goes no further than the establishment 
of these good relations. Thus already Hugo Floriac. prol. i. c. 3, 12, 
II. p. 46, 50 : God instituted, hallowed and connected the two 
powers, by which in this present life the Holy Church is ruled and 
governed, and He desired their inward harmony : they are the two 
eyes of the corpus ecclesiae, the two lights in tota mundi fabrica, two 
pillars, two wings. See also Const. Frider. 11. ann. 1220, § 7 in M. G. L. 
II. p. 236. Sachsensp. i, a. i, with the gloss to this art. and to ill. 
art. 57. Also Declaration of the Princes of the Empire, ann. 1274, in 
Raynald, ann. nr. 11 : et ii duo gladii in domo domini constituti, 
intirnae dilectionis foedere copulati, exsurgant in reformationem 
universi populi Christiani. Likewise Rudolf I. ; see also citations in 
Hofler, p. 121 fF. Eng. Volk. De ortu, c. 22. Joh. Paris, c. 14. 
Definition of Rights in Ficker, op. cit. p. 710, art. 4, ann. 1338. 
Quaest. in utramque partem, p. 105, ad. 11. Ockham, Octo q. i. c. 3 
and 14. Miles in Somn. Virid. I. c. 49 — 54. Ant. Ros. iii. c. 15 — 
18. Johannes in Introduction to the Briinner Schoffenbuch. But 
the idea of 'harmonious concordance' between two powers which are 
two vital functions of the one mystical body attains its most splendid/ 
form in the hands of Nicholas of Cues: especially, iii. c. i, 12 and 14. ' 

46. Hugh of Fleury teaches on the one hand that the bishops Supe- 
are subject to the royal power, • non natura, sed ordine, ut universitas p?"'''i°? 
regni ad unum redigatur principium,' even as Christ is subject to the Spirituals 
Father (i. c. 3, and 11. p. 58 and 65), and, on the other hand, that |"^.°? 
kings are subject to the spiritual power (i. c. 7, p. 30 ff., c. 9 — 10, Tem- 
II. pp. 53—5, 59—60). He blames Gregory VII. (11. p. 58), and P""^^^' 
even concedes the royal appointment of bishops, subject however to 
the approval of the ecclesiastical power and to spiritual investiture 
(i. c. 5, and 11. p. 57). Joh. Par. c. 14. Qu. in utr. a. 4. Ock. Oct. 
qu. III. c. 3, 8 and Dial. in. tr. 2, 1. x, c. 24. Som. Vir. 11. c. 112, 
114, 124. Theod. a Niem, Priv. p. 785. Nic. Cus. in. c. i, 4. 
Ant. Ros. I. 47, 48, 56, 63, 64, III. c. 16, 21 and the summary 
in 56 : the monarchia divina and monarchia temporalis are co- 
ordinated by God; each is subject to the other in that other's 
province; and 'mixed' affairs should be treated by 'mixed' councils. 
As to particulars: — the subjection of Emperor and Princes to the 
Church ratione fidei et peccati is conceded (see Host, de accus. 
nr. 7 and see the admission in the Sachsenspiegel, in. a. 54, § 3 and 
57, § I, that the Kaiser is within the 'rightful' ban of the Church); 
also princes are in duty bound to lend to the Church the aid of the 
lay arm (Dictum Gratiani before Dist. 97 and after c. 28, C. 23, q. 8; 
Const, of 1220, § 7, M. G. L. 11. 236; Sachsensp. i. a. i; Gerson, 



1 24 Political Theories of the Middle Age. 

IV. 606 and 619); but, on the other hand, a temporal jurisdiction 

over the priesthood in temporal causes is asserted (Ockham, Octo 

qu. III. c. 2 ; and Dial. I. 6, c. i — 65, 91 — 100, in. tr. 2, I. 3, c. 

16 — 23 ; Ant. Ros. I. c. 29, 30, 53, 63 ; Gloss on Sachsensp. i. a. i). 

Occasional 47- Joh. Paris, c. 14 and 18 (per accidens). Lup. Bebenb. 

inter- ^ j^, p. 379, 385, 386 (necessitas facti aut iuris). Ockham, Octo 

Pope in qu. I. c. II, II. c. 4, 7 — 9, 12, 14, III. c. 2, IV. c. 3, VIII. c. s, and 

Traiporal pjj^j_ jjj_ tj_ j^ j_ j^ ^ j5 jjjJ j_ ^^ ^ ^ (casualiter in defectum 

iudicis). Somn. Virid. I. c. 150 — 151, 164 — 165, 11. c. 4 — 12, 136. 

Ant. Ros. III. c. 22. Gloss on Sachsensp. I. a. i, in. a. 52 and 57. 

Klagspiegel, 119. 

Occasional 48. Petrus Crassus, pp. 27 and 31 (right to summon a Council); 

l."''^'^' p p. 48 (right to sit in judgment on a Pope). Hugo Floriac. 11. 

Kaiser in pp. 57 — 9 (appointment of Popes and decision of ecclesiastical 

Spiritual disputes). Nilus arch. Thessal. De primatu, 1. 11. p. 38. Joh. Paris. 

c. 14. Mich, de Caes. ep. Gold. 11. pp. 1244 — 1261. Petrarca, ep. 

XV. ib. 1365. Ockham, Octo q. i. c. 12, 17, 11. c. 7, in. c. 8, iv. c. 6; 

Dial. III. tr. 2, 1. 2, c. 2 — 15, 1. 3, c. 2 and 4. Randuf, De mod. un. 

c. 15 and 20. Nic. Cus. iii. c. 15 and 40 (the Emperor may himself 

undertake ecclesiastical reforms). Zabar. c. 6, X. i, 6, nr. 15, and 

De schism, p. 689 ff. Greg. Heimb. in Gold. I. 561 — 563. Ant. 

Ros. I. c. 48, II. c. 24, 25, III. c. 3. Decius, Cons. 151, nr. 13. — 

Even the papalists concede certain rights which they explain as 

flowing from the Emperor's advocatia over the Church (Gloss on 

c. 34, X. I, 6, V. carebii) : thus the right to call a Council is conceded 

by Aug. Triumph, i. q. 3, a. 2, and q. 5, a. 6, by Petrus a Monte, 

II. nr. 5, and others, but contested by Alv. Pel. i. a. 22. The papalists 

help themselves over historical instances of the exercise of imperial 

rights (especially in the matter of papal elections) by referring such 

instances to concessions which the Church has revoked: e.g. Landulf. 

Col. De transl. Imp. c. 6 ; Aug. Triumph, i. q. 2, a. 7 j Alv. Pel. 

I. a. I, and 37 Bb and cc. 

Unity 49- See esp. Thom. Aquin. Summa cont. gent. iv. 76 (sicut est 

within the una ecclesia, ita oportet esse unum populum Christianum, with one 

caput and one regimen) ; Lect. 2 ad Ephes. iv. (the ecclesia as civitas 

etc.); Coram, ad Ps. 45. Alv. Pel. i. a. 7, 13, 24 — 8, 36 — 8 and 

esp. 63. 

■Plje 50. For this reason the power of the Church and of its earthly 

Church Head comprises, though to a disputable extent, all the infidels in the 

Infidels, world, nay, it covers all past and future Mankind and so reaches into 

heaven and hell. See Thom. Aquin. Sum. Theol. 11. 2, q. 10 — 12, 

and III. q. iS, a. i — 3 ; Host, upon c, 8, X. 3, 34 ; Aegid. Rom. De 



Notes. 125 

pot. eccl. II. c. 7; Aug. Triumph, i. q. 18, 23 — 4 and 29 — 35 ; Alv. 
Pel. I. a. 13 A, 37 F — N, 40, 57 ; Somn. Virid. 11. 35 ; Ant. Ros. 
IV c. I. 

51. In the eyes of the papalists this is self-evident. Gloss on The 

c. 3, X. I, 41, V. minoris: ecclesia fungitur iure imperii. Hostiensis, ^ state '^ 
Summa de r. i. i. nr. 4: ecclesia respublica est, quia ius publicum Polity or 
consistit in sacris et in sacerdotibus. Thorn. Aquin. as above in ^gJ^Ju"" 
Note 49. Alvarius Pelagius, i. a. 61 — 3, goes furthest: the Church 
is a regnum, and indeed the one universal, holy and complete 
Realm ; and to it the whole of the ' Aristotelic-Thomistic ' theory of 
the State is applied. — But even the Opposition disputes only the 
worldly nature of the Church, and does not deny to it the character 
oidLpolitia with magistrature and coercive power ; see above Note 42. 
Gerson and other writers of the same group declare that the Church 
is a cotnmunitas, respublica, politia iuris, to which everyone must 
belong; see e.g. Gerson, Op. iii. p. 27 ; Randuf, De modis uniendi, 
c. 2 (ib. II. p. 163): ecclesia Christi est inter omnes respublicas 
aut societates recte ordinatas a Christo superior. — The treatment 
of heresy as crimen laesae maiestatis (Innoc. III. and Gerson, 
III. pp. 33, 63) and all coercion of conscience have their roots here. 

52. Ockham, Octo qu. I. c. i and 30, and iii. c. 2 and 8; Dial. The 
III. tr. 2, 1. I, c. 3 and 8, 1. 3, c. 17. See also Gerson, Trilogus, Op. "f g^^"^ 
II. p. 88, for some similar opinions that were expressed in his day. — temal 
Marsilius denies to the Church coercive power even in spirituals, and ^n" bted 
this implies the negation of the necessity of External Unity. Gregory 

of Heimburg, i. p. 557 ff. goes near to this. 

52 a. See Lechner, Joh. v. Wiclif, i. p. 541, and 11. p. 233. The 

53. See above all Dante, Mon. i. Also Engelb. Volk., De ortu, ^^nTebed 

c. 14, 15, 17 — 18; De reg. princ. vii. c. 32. Ockham, Dial. iii. byWyclif 

tr. 2, 1. I, c. I. Petrarca, ep. vii. (et in terra et in coelo optima ^"^' 
, . . .... .I, Univer- 

semper fuit unitas principatus) and ep. viii. p. 1355. Ant. Ros. sality 

I. c. ■; — 7. Aen. Sylv. c. 4, 10, 12. of "if 

,, . . , - . . ^ . . _. . Empire. 

54. Following m the steps of Augustme, De civit. Dei, v. c. 15, ij^cM. 
theorists elaborately prove that the Romans subdued the world de macy 
iure, though at times they were guilty of violence. The chief ^q„,|^ 
argument consists in the many miraculous ' judgments ' in which Empire. 
God manifested his choice of the Romans, on account of their 
political virtues, to be the wielders of that qfficium imperii for which 

they were the aptum organum. Thereby He legitimated their wars 
and victories. Also it is opined that in all their conquests they 
unselfishly kept * the common good ' before their eyes, and that this 
end justified the means. Comp. esp. Dante, 11. c. i — 1 1 ; Engelb. 



126 Political Theories of the Middle Age. 



Volk. De ortu, 15, 18; Petrarca, ep. vii. p. 1355; Baldus, 1. i, 
C. I, I ; Aen. Sylv. c. 3—5 ; Petr. de Andlo, i. c. 4—10 ; Ant. Ros. 
V. c. I — 2, 15 — 24; and so also ecclesiastical writers (e.g. Ptol. Luc. 
in. c. 4—6 ; Alv. Pel. i. a. 42) even though they do not allow that 
this imperium was verum. Then the lawyers add references to the 
Corpus luris (esp. 1. 9, D. 14, 2), to the legitimacy of the titles 
(testamenta and bella iusta) by which dominion was acquired, and to 
the retroactive validation by voluntary subjection. Comp. Engelb. 
Volk. c. 11; Ockham, Dial. in. tr. 2, 1. 1, c. 27 and 1. 2, c. 5 : 
consensus maioris partis mundi : a corrupt intent does not prevent 
acquisition of rights. Ant. Ros. v. c. 1 — 30 : an elaborate demon- 
stration of the legitimacy of the Empire according to ius divinum, 
naturale, gentium et civile. 
Transfer 55. Comp. Jord. Osnab. c. I, p. 43 ff. and c. 8. Dante, Mon. 

?f *? II. c. 12 — •?. Eng. Volk. c. II and 20. Ockham, Octo qu. 11. c. s, 
Empire. o s > 1 j. 

IV. c. 3, VIII. c. 3 and Dial. in. tr. 2, 1. 2, c. 5. Aen. Sylv. c. 6 — 8 : 
general utility required, Nature invented, God granted, His Son 
hallowed, the consent of men confirmed, the Roman empire. Ant. 
Ros. v. c. 18 and 29. — ^The strictly ecclesiastical doctrine differed a 
little from this: — Christ Himself took over the Empire, allowing 
Augustus to govern as His Vicar ; He then substituted for Himself 
Peter and Peter's successors, and the subsequent emperors were their 
vicars; and finally He caused Constantine to recognize this relation- 
ship by the so-called Donation; Ptol. Luc. in. c. 13 — 18; Petr. de 
Andlo, I. c. II and 13; comp. Ockham, Octo qu. 11. c. 15. — Men 
are unanimous that the existing Reich is identical with that of the 
Caesars; Petr. Crassus, p. 26; Dante, 1. c. ; Ockham, Octo q. 
II. c. 5, IV. c. 3, 5, 7, VIII. c. 3, Dial. III. tr. 2, 1. i, c. 25 and 27. 
Only Lupoid v. Bebenburg brings into play the rights that Karl 
the Great had before he was crowned Emperor; and against this 
Ockham, Octo qu. iv. 3, protests. — Also men are unanimous that 
the present Greek Emperor is no longer a true Emperor, since he is 
no longer united to the true Church : Joh. Gal. in appar. Tancr. 
upon Comp. in. in Schulte, Abhand. [Vienna Acad.] vol. 66, 
p. 131; Gloss upon c. 34, X. i, 6, v. transtulit in Germanos; 
Bartolus, 1. 24, Dig. de capt. 49, 15 ; Ubertus de Lampugnano, op. 
cit. ; Joh. de Platea, 1. un. Cod. ii, 20; Tengler, Laiensp. 56. 
Universal 56. S. Bemh. ep. ad Lothar. in Gold. p. 66 ; ad Conr. ib. p. 67. 
oAhe' ^"^ Frising. Gesta, I. c. 23, Chron. vii. c. 34. Land. Col. De 
Empire, transl. c. 10: super omnes reges et nationes est dominus mundi. 
Gl. on 11. Feud. 53 pr. Pet. de Vin. ep. I. c. i, 2; vi. c 30. Alv. 
Pel. I. a. 37 and 57; n. a. 29. Lup. Bebenb. c. 11, 13, 16. Ockham, 



Notes. 127 



Octo q. IV. c. s and viii. c. 3. Gloss on Sachsensp. iii. a. 57. 
Baldus, 1. I, Cod. i, i, nr. i ff. and 11. Feud. 53 pr. Theod. a Niem. 
p. 785. Randuf, De mod. un. c. 5 and 14 (p. 167 and 180), Alex. 
Tart. 1. 26, Dig. 36, i, nr. 2. Aen. Sylv. c. 10. Pet. de Andlo 11. 
c. 2. Tengler, I^aiensp. 56. The Empire comprises de iure even 
the infidels; Joh. Gal. and Gloss on c. 34, X. i, 6; Eng. Volk. c. 18 
(for even they are bound to us iure naturali vel gentiuni); Ockham, 
Dial. III. tr. 2, 1. 2, c. 5; Ant. Ros. i. c. 56. — The content of the 
imperial rights is variously defined. Lupoid of Bebenburg, & 15, 
distinguished imperial and mediatized lands : in the latter the 
Emperor has immediate jurisdiction only over the rulers and a 
mediate jurisdiction over the subjects in case of default of justice, 
or the like. Ockham, Octo qu. iv. c. 3, 8, 9, viii. c. 4: the Emperor 
is a Superior with right to decide matters that the king cannot 
decide, and with power to perform certain 'reserved' acts; also 
(v. c. 6) with power to make new kings in provinces that have none. 
Aeneas Sylvius still asserts a true feudal lordship over all princes 
and peoples ; they all have their temporalities from the Kaiser and 
owe him obedience (c. 10); he has a right of 'correction,' may issue 
commands pro salute communi, impose taxes, demand auxiliary 
troops, right of transit, provisions (c. 14); he may decide disputes 
among sovereigns. Petr. de Andlo (11. c. 8): legislation, protective 
lordship, taxation, suzerain power. Nich. of Cues (ill. c. 6 — 7) 
pares down the imperium mundi until it is a general care for the 
common weal of Christianity especially in matters of faith. 

57. Jordan. Osnabr. c. i, p. 43 ff. and c. 10, p. 90. Engelb. The 
Volk. c 20 — ^4. Aug. Triumph. 11. p. 42. Baldus sup. pace Const, p""?""^ '^ 
v. imp. clem. nr. 8. Joh. de Platea, 1. 2, C. 1 1, 9, nr. 2. Aen. Sylv. tible de 
c. 8. Ant. Ros. i. c. 67. Petr. de Andlo, 11. c. 20. f"'^"- 

58. The most important employment of this principle is the The 
invaUdation of the Donation of Constantine. Dante in. c. 10 j^^Ji^'i^uc! 
(scissa esset tunica inconsutilis : superius dominium, cuius unitas tible de 
divisionem non patitur); Quaestio in utramque p. 106, ad. 14; Ant. ''""' 
Ros. I. c. 64 — 6, 70. See below, Note 283. But the principle is 

also turned against kings and republics. Lup. Bebenb. c. ii and 15: 
true, that by privilege or prescription hereditary kingships may be 
founded and kings may acquire imperial rights in their realms and so 
far as concerns {quoad) their subjects; but this is only prescription 
quoad quid, and the Kaiser's suzerainty is always reserved. Ockham, 
Octo q. III. c. 7, IV. c. 3 — 5, viii. 3 — 4; Dial. iii. tr. 2, 1. i, c. 18, 
1. 2, c. 5 — 9, 23. Alv. Pel. II. a. 29. Baldus, 1. i. Cod. i. i, nr. 
13—22 and II. Feud. 53 pr. Alex. Tart. 1. 26, Dig. 36, i, nr. 4. Aen. 



[28 Political Theories of the Middle Age. 



Exemp- 
tion from 
the Em- 
pire by 
Privilege 
or Pre- 
scription. 

Exemp- 
tions 

would not 
destroy 
theoretical 
Univer- 
sality. 

Necessity 
of an 
Universal 
Realm 
denied. 



Wider and 

narrower 

Groups. 



Sylvius, c. II — 13 : it would be against the ius naturae, the common 
weal, the command of Christ. Petr. de Andl. 11. c. 8 : both swords 
are equally indivisible. Bertach. v. imperium. 

59. Land. Col. De transl. c. 10. Quaestio in utramque p. 98, 
102, art. 5, 106, ad. 14. Andr. de Is. prooem. Feud. nr. 29 — 35. 
Nicol. Neap. 1. 6, § i, Dig. 27, i,nr. 2. Hier. Zanetinus, Diff. nr. 102. 

60. Comp. Eng. Volk. c. 18. Baldus, 11. Feud. 53 pr.: the 
Empire would still remain universale, for universale and integrum are 
not all one. Comp. prooem. Dig. nr. 22 — 35. Nic. Cus. Cone. iii. 
c. I, 6, 7 : it is 'imperium mundi a maiori parte mundi,' and because 
the imperial rights still remain, at least so far as concerns the protec- 
tion of the Christian faith. 

61. John of Paris, c. 3 : whereas in the Church unity is required 
by divine law, the faithful laity, moved by a natural instinct, which is 
of God, should live in different States j this difference is justified by 
the differences between soul and body, word and hand, unity of 
church-property and division of lay folk's property, unity of faith 
and diversity of laws ; also appeal is made to Augustine ; comp. c. 
16, 22, p. 210 — 2. To the same effect, but with a 'perhaps,' Gerson, 
II. 238. Disputatio, p. 686 — 7. Somn. Virid. i.e. 36: only within 
each particular realm need there be unity. — So Marsilius, though he 
leaves the question open, remarks that the unity of the world does 
not prove the necessity of an unicus principatus, since a pluralitas 
can constitute a unity (Def. Pac. i. c. 17; in Transl. Imp. c. 12 he 
omits Landulf's mention of the imperium mundi). — On the other 
side, see Eng. Volk. c. 16 and 18 j Ant. Ros. 11. c. 4 and 7. And, 
in particular, Ockham, Dial. m. tr. 2, 1. i, c. i — 10. Of the five 
possible views that Ockham mentions he seems to prefer the fifth, 
viz. that, according to circumstances, sometimes unity, sometimes 
severance will be desirable. Comp. 1. 2, c. 6 — 9. 

62. See Aegid. Rom. De reg. princ. 11. i, c. 2. Engelb. Volk. 
De ortu, c. 15, 17, 18: as the example of Universal Nature shows a 
building-up towards Unity, so the ordo totius communitatis publicae 
shows an ever-recurring 'subalternation' until a single point is 
reached: above every common weal stands a commoner: every 
lower end is means to a higher end : the sum total of this-worldly 
ends is means to an other-wordly end : the 'felicity' of every narrower 
depends on that of some wider community, and thus in the last 
resort on the felicity of the Empire. Dante, i. c. 3 and 5. See also 
Aug. Triumph, i. q. i, a. 6. As to the structure of the Chuch, see 
Gierke, D. G. R. vol. in. § 8. 

63. [The difficulty of finding an exact equivalent for the 



Notes. 129 

German Zweck has hampered the translator. Our author means that 
in the medieval scheme each Partial Whole, e.g. a village commune, 
has a Sonderzweck, an aim, object, purpose or end peculiar to it, and 
distinct from the Zweck of any larger whole, e.g. the kingdom.] 
Dante (i. c. 3 and 5), in particular, makes this plain. For him, 
every composite Being (plura ordinata ad unum) has its Sonderzweck 
which makes it a unit. This is the case with the homo singularis, the 
communitas domestica, the vicus, the civitas, the regnum. No one, 
however, more beautifully expresses the idea of an organic articula- 
tion in unity and a relative independence of members in a ' harmonious 
concord' of the whole body than does Nicholas of Cues, e.g. 11. c. 
27 — 28. Comp. also Ant. Ros. I. c. 6. 

64. See Aegid. Col. 11. i, c. 2 and Dante 1. c. (they throw The 
provincia and regnum into one); Ockham, Dial. in. tr. i, 1. 2, c. 3 — 5. I^fticuia- 
[Elsewhere, D. G. R. iii. 356, Dr Gierke has stated the doctrine of tion of 
the legists. They incline towards a triple gradation of local jj'°™'""'"' 
universitates, (i) vicus, villa, castrum, oppidum, (2) civitas, a city- 
territory, such as may be found in Italy, (3) provincia or regnum?\ — 
Thom. Aquin. De rag. princ. i. c. i, distinguishes familia, civitas, 
provincia {regnum). Engelb. Volk. in one of his writings (De reg. 

prin. II. c. 2 — 3) stops at the civitas, which also embraces the 
regnum; in another (De ortu, c. 7 and 12) he says that Aristotle 
distinguished five communities (domus, vicus, civitas, provincia, 
regnum, to which imperium must be added,) while Augustine made 
only three {domus, urbs, orbis). — Aug. Triumph. 1. c, makes five 
communitates in the mystical body of the Church: the vicus with 
a parson, the civitas with a bishop, provincia with archbishop, 
regnum with patriarch, communitas iotius orbis with pope. — Ant. Ros. 
I. c. 6, distinguishes as standing above the individual and the house- 
hold, five ' corpora my stica universitatum ' : (i) communitas unius vici, 
castri, oppidi, \raAsx parochus and magister; (2) civifatis under bishop 
and defensor; (3) provinciae under archbishop and praeses; (4) regni 
under primas and rex; (5) universi orbis under Pope and Kaiser. 

65. This rich development of thought has been overlooked by 
van Krieken, Die sog. organische Staatstheorie, pp. 26 — 39; also 
Held, Staat u. Gesellschaft, p. 575 is incorrect. 

66. In what follows we shall only pay heed to those sides of the ' The _ 
Organic Comparison [i.e. the comparison of the body politic to the q^, 
body natural] which become of importance in legal theory. We parison.' 
may, however, notice in passing its connexion with some of the 
pictorial concepts of ecclesiastical law (e.g. the spiritual marriage of 

the prelate with his church, the family relationship of a daughter- 
id. 9 



130 Political Theories of the Middle Age. 

church to a mother-church) and with some poetical allegories : as 
e.g. the statue of Nebuchadnezzar's dream (cf. Gerson, iv. 662) or the 
installation of the Empire (Lup. Beb. ritmat. querul. in Boehmer, 
Pontes, I, 479). The application to the Church of 'the Six Ages' 
(Gold. I. p. 25 flf. c. 3 — 7) and the remarks as to the Ages and Faults 
of the Empire in Eng. Volk. De ortu et fine, c. 21 and 23, show the 
same tendency. 

Tlie 67. See e.g. B. Gregor. in c. i, Dist. 89. ConciL Paris, ann. 829 

Bo'dy and (^bove, Note 7). Jonas of Orl&ns (above, Note 7). Gregory VII. 

the Pope (above, Note 45). Ivo of Chartres (above. Note 20). S. Bern. Ep. 

Head. °^ ^^4^ (above, Note 7). Gerhoh of Reichersp. (above. Note 7). 
Thom. Aquin. (above, Note 7). Ptol. Luc. De reg. princ. in. c. 10 
(above, Note 12). Gl. on c. 14, X. 5, 31, v. unum corpus. Innoc 
c. 4, X. 2, r2, nr. 3. Alv. Pel. I. a. 13. Joh. Andr. c 4, X. i, 6, 
nr. 13. Domin. Gem. c. 17 in Sexto i, 6, nr. 4 — 16. 

Bicephal- ^8. Alv. Pel. i. a. 13 F and a. 37 R — Q. Soran. Virid. n. c. 6 ff. 

ism would Ockham, Dial. in. tr. i, 1. 2, c. i. Aug. Triumph, i. q. 5, a. i and 

be mon- , ^ . . ,. .... 

strous. q- 191 a- 2 : the Pope is ' caput universalis ecclesiae.-.et capitis est 

influere vitam omnibus membris.' Elsewhere (i. q. i, a. i and 6) he 

makes the Pope the vitalizing heart, and then (i. q. 19, a. 2) says 

that he is not contradicting himself, since in metaphorical discourse 

comparisons may be varied so as to bring out various likenesses. 

Johannes Andreae, Nov. s. c. 13, X. 4, 17. Card. Alex. D. 15, and 

c. 3, D. 21. Ludov. Rom. Cons. 345, nr. 3 flf. Petrus a Monte, De 

prim. pap. i. nr. 16 (Tr. U. J. xiii. i, p. 144). 

Need for a 69. Engelb. Volk. De ortu, a 15, 17, 18. Petrarca, Ep. vii. . 

H^ad°"^^' the orbis universus, being a magnum corpus, can only have unum 

caput temporale, for, if an animal biceps would be a monster, how 

much more a many-headed beast. Similarly in Ep. viii. Nic. Cus. 

III. c. I and 41. Ant. Ros. i. c. 67. Petr. de Andlo, 11, c. 2, 

70. The Knight in Somn. Virid. 11. c. 305 — 12. 

Possibility l^- Lup. Bebenb. c. 15, pp. 399, 401 : not duo capita in solidum, 

head^d^ but a caput mediatum below a caput immediatum, like kings below the 

ness. Emperor, and bishops below an archbishop. Quaestio in utramque 

partem, p. 103. Ockham, Dial. iii. tr. i, 1. 2, c i and 30 : quamvis 

corpus naturale esset monstruosum si haberet duo capita. ..tamen 

corpus mysticum potest habere plura capita spiritualia, quorum unum 

sit sub alio : so priests and king, whose head is God. 

The 72" [Elsewhere, D. G. R. in. 112, our author has traced this 

Priesthood comparison far back to the Apostolic Constitutions, Chrysostom, 

the Body Gregory of Nazianzus and Isidore of Pelusium.] Ivo of Chartres, 

Politic. Ep. 106 (above, Note 20). Joh. Saresb. v. c 2, 3—5. Alex. HaL 



Notes. 131 

III. q. 4O1 m. 2. Hugo de S. Vict. De sacram. 1. 11. p. 2, c. 4. 
Honor. Augustod. Summa gloria de praecel. sacerd. in Migne, vol. 172. 
Innocent III, in c. 6, X. i, 33 j Reg. sup. neg. imp. Ep. 18. Thorn. 
Aquin. Summa, 11, 2, q. 60, art, 6, ad 3 (potestas saecularis subditur 
spirituali, sicut corpus animae). Ptol. Luc ni. c. 10. Alv, Pel, 

I. a, 37 R, Cler. in Somn. Virid. i. c. 37, 43, 45, 47, loi. 

73. The knight in Somn. Virid, (i, c, 38, 44, 46, 48, 102, The 

n. 102) asserts that Christ alone is the Soul, while the spiritual and ^ion^f'" 
temporal powers are the two principal members, head and heart, Soul by 
equally directed by the Soul, but endowed with separate powers and hood ques- 
activities. — On the other hand, Marsilius sees the priesthood as no tioned. 
more than one among many members. 

74. Nic. Cus. I. c. I — 6, III. c. 1, 10, 41. [The main part of The 
this note has been taken into our text. Cusanus proceeds to show Catholic 

,,,,., . . Concord- 

the parallelism between spiritual and temporal assemblies : e.g. ance of 

between the Cardinals and the Prince-Electors.l Nicholas 

-* V. Cues. 

75. Joh. Saresb. v. c, 2 : est respublica corpus quoddam, quod jhe Body 

divini muneris beneficio animatur et summae aequitatis agitur nutu Mystical^ 
et regitur quodam moderamine rationis. Vincent Bellovac, Spec. poUtic. 
doctr. VII. c. 8 : to the like effect : de corpore reipublicae mystico. 
Hugo Floriac. i. c. 2 : corpus regni : also c. i, 3, 4. Thom. Aquin. 
De reg, princ, i. c. i, 12 — 14; Summa Theol, 11. i, q, 81, a. i : in 
civilibus omnes homines qui sunt unius communitatis reputantur 
quasi unum corpus et tota communitas quasi unus homo, Ptol. Luc, 

II. c, 7 : quodlibet regnum sive civitas sive castrum sive quodcunque 
aUud collegium assimilatur humano corpori ; iv, c, 23. Eng. Volk. 
De reg. princ. iii, c. 16 : civitas vel regnum est quasi quoddam 
unum corpus animatum; c 19: corpus naturale; corpus morale et 
politicum. Mars. Pat, i. c, 15. Ockham, Octo q, viii. c. 5, p. 385 ; 
Dial, III, tr, i, 1. 2, c. 1; tr. 2, 1, i, c, i. Gerson, iv. 598, 600, 601. 
Zabar, c. 4, X. 3, 10, nr, 2 — 3 : ad similitudinem corporis humani. 
Aen, Sylv. c. 18 : mysticum reipublicae corpus. Ant. Ros. i, c. 6 : 
five-fold corpus mysticum (above. Note 64), Martinus Laudens. De 
repress. (Tr, U. J, xii, 279) nr, 5 and 6 : universitas est corpus 
mysticum quod continet partes suas, i.e, singulos de universitate. 
Bertach. v. capitulum, f. 150, nr. 4. 

76. Joh. Saresb. v. c. i ff. The servants of Religion are the Anthropo- 
Soul of the Body and therefore have principatum totim corporis, the ^"Jiits 
prince is the head, the senate the heart, the court the sides, officers 

and judges are the eyes, ears and tongue, the executive officials are 
the unarmed and the army is the armed hand, the financial depart- 
ment is belly and intestines, landfolk, handicraftsmen and the like 

9—2 



132 Political Theories of the Middle Age. 

are the feet, so that the State exceeds the centipede numerositaU 
pedum; the protection of the folk is the shoeing; the distress of 
these feet is the State's gout (vi. c. 20). 
Thebe- 77. Joh. Saresb. V. c. i. Compare Wyttenbach, Plutarchi 

f "°h"fp °/ Moraha, Oxonii 1795, I. p. Ixviii ff. ; Schaarschmidt, Joh. Sares- 
morphism. beriensis, Leipzig 1862, p. 123. — The incitement to comparison of 
particular pieces of the State with particular members of the human 
body is due in part to the words of St Paul (see asp. in c. i, 
Dist. 89, the application of the idea of membra in corpore to the 
divers officia of the Church, where the Apostle is vouched) ; and is 
also due to a continuous tradition of the pictorial phrases of classical 
writers. This may be seen already in Lex Wisigoth. 11. i, § 4 ; also 
in the ancient Introduction to the Institutes in Fitting, Juristische 
Schriften des friiheren Mittelalters (Halle 1876), p. 148, § 20: 
Princeps quasi primum caput... illustres quasi ocuIi...spectabiles 
manus...clarissimi thorax.. .pedanei pedes: and so in the Church. 
Anthropo- 78. Thus Vincent. Bellovac. Spec, doct, vii. c. 8 — 14; close 
™n't^'*'^'d 3g''^si"S"'^ ^'th J°^° oif Salisbury. Ptol. Luc. 11. c. 7, iv. c. 1 1 and 
25 ; vouching the Policraticus. Engelb. Volk. De reg. princ. in. 
c. 16: the rulers are the soul, the citizens the various limbs: 'cui 
deputatur a natura unumquodque simile membrum in corpore.' 
Aen. Sylv. c. 18. — Marsilius is freer from these vagaries, notwith- 
standing the use that he makes of his knowledge of medicine. 
^],g 79. Nic. Cus. I. c. 10, 14 — 17, and in. c. 41. In the 'Spiritual 

Anthropo- Life,' which in its totality represents the soul, Christ Himself is the 
aiid^tote- single heart, whence in the guise of arteries the canones branch in 
Medicine every direction, so that even the Pope does not stand above them 
sanus." ^"' roust fill himself with them. In the ' Corporal Life ' the offices 
from the Kaiser's downwards are the several limbs, the kges are the 
nerves, and the kges imperiales are the brain, so that by them the 
head, that is, the Emperor, must be bound. The patria is the 
skeleton and the flesh is represented by changing and perishing 
homines. The health of the State consists in the harmony of the four 
temperaments. Diseases of the body politic should be treated by the 
Emperor in accordance with the counsel of books and of experienced 
state-physicians. He should himself test the medicine by taste, 
smell and sight that it may suit time and place, and then bring it to 
the teeth (privy council), stomach (grand council) and liver (judicial 
tribunal) for digestion and distribution. If preservative measures 
fail, then in the last resort he must proceed to amputation, but this 
will be cum dolore compassionis. 
80. Joh. Saresb. vi. c. 20 — 5. 



Notes. 133 

81. Thom. Aquin. Summa Theol. in. q. 8 : a demonstration Some 
that ' tota ecclesia dicitur unum corpus mysticum per similitudinem ofphom 
ad naturale corpus humanum': Christ the head, all rational creatures Aquinas, 
the members of this body. Aquinas remarks, however, that this is 
similitude, not identity. As points of difference he notices that past 

and future men are members of the mystical body, and that parts of 
it are in their turn independent bodies, so that there may be divers 
heads and heads of heads (caput capitis) corresponding to its mani- 
fold articulation. Then the various Conditions of Grace are pictured 
as internal degrees of membership (art. 3). Then he explains 
Original Sin by saying that all born of Adam may be considered ut 
unus homo, and also tanquam multa membra unites corporis, but that 
the act of one member of the natural body, e.g. the hand, ' non est 
voluntarius voluntate ipsius manus, sed voluntate animae quae primo 
movet membrum'; Summa Theol. i. q. 81, a. i. With the same 
idea of the Body Mystical he connects the doctrine of the seven 
sacraments ; whereof two operate for the spiritual and bodily main- 
tenance and increase of the Whole, and five for the placing of 
Individuals in the way of grace : Summa Theol. in. q. 65 ff. ; Summa 
cont. gentil. iv. q. 58 ff. ; Lect. 2 ad Rom. 12. Also the differences 
of ecclesiastical office and calling he deduces from the necessary 
existence of divers members in the one body with the one soul; 
Lect. 2 ad Rom. 12 ; Lect. 3 ad i. Corinth. 12. Comp. Alv. Pel. 
I. a. 63. Also Catechism. Rom. P. 11. c. 7, q. 6. 

82. Ptol. Luc. IV. c. 23 : therefore Augustine compares the State Harmonjr 
to a melodious song, while Aristotle likens it to a naturale e^porcel^""' 
organicum corpus. 

83. Aegid. Rom. De reg. princ. i. 2, c. 12; comp. i. i, c. 13 ; Co-ordina- 
III. I, c. 5 and 8 ; in. 2, c. 34 ; in. 3, c i and c. 23 (wars the Limbs, 
medicine of human society). 

84. Eng. Volk. De reg. princ. c. 16. In c. 18 — 31 the Goods of 
parallelism is displayed in the matter of the five internal bona q'^^^ <,£ 
(sanitas, pulchritudo, magnitudo, robur, potentia agonistica regni) Indi- 
and the six external bona (nobilitas, amicitia, divitiae, honorabilitas, 
potentia, bona fortuna regni). 

85. Mars. Pat. I. c. 2, and for the details c. 15. Comp. c. 8, 17, 
and II. c. 24. 

86. Ockham, Octo qu. i. c. 11, and viii. c. 5, p. 385- Thus, ^^"p'^^'Jf^g 
e g. the lame try to walk with their hands and those who are handless Power 
must take to biting : sic in corpore mystico at in coUegio seu univer- ^"^"^ 
sitate, uno deficiente, alius, si habet potestatem, supplet defectum 

eius. Comp. Dial. iii. tr. 2, 1. 3, c. 2 and 4, where the common and 



134 Political Theories of the Middle Age. 



specific functions of clergy and laity as divers members of the Church 
are distinguished, and at the same time it is remarked that in the 
mystical body there is a much greater call than there is in the 
natural body for one member to discharge in cases of necessity the 
functions assigned to another by positive law. 
The Idea 87. Joh. Saresb.; see above, Note 75. Thorn. Aq. De reg. 
ber^hip." P"nc. I. c. 12; Summa Theol. 11. 2, q. 58, a. 5, in. q. 8, a. i . and 
above, Note 81. Aegid. Rom.; above Note 83. Eng. Volk. in. c. 
16. Alv, Pel. I. a. 63 : ecclesia est...unum totum ex multis partibus 
constitutum et sicut unum corpus ex multis membris compactum : in 
details he follows the learning of S. Thomas. Baldus, prooem. Feud, 
nr. 32 : imperium est in similitudine corporis humani, a quo, si 
abscinderetur auricula, non esset corpus perfectum sed monstruosum. 
Nic. Cus.; above, Note 79. Aen. Sylv. c. 18. Ant Ros. i. c 67 
and 69. 
Likeness 88. Comp. the definition of ordo (obtained from Aug. De 

and Un- ^j^ -Qtx, 1. 19, c. 13) in Hug. Floriac. i. c. i and 12, p. 45 and Ptol, 
among Luc. IV. 9 : parium et disparium rerum sua cuique loca tribuens 
Members, dispositio. Then Thom. Aq. (Summa Theol. i. q. 96, a. 3) starting 
from this, concludes that, even had there been no Fall of Man, 
inequality among men would have developed itself ' ex natura absque 
defectu naturae'; for 'quae a Deo sunt, ordinata sunt' and 'ordo 
autem maxime videtur in disparitate consistere.' See also Summa 
adversus gentiles, in. c. 81. — Then all Estates, groups, professional 
gilds and the like appear as partes civitatis to writers who rely on 
Aristotle : especially to Marsihus (11. c. 5), who distinguishes three 
partes vel officia civitatis (in a strict sense), namely, the military, 
priestly and judicial orders, and three partes vel officia civitatis (in a 
wider sense) namely, agriculture, handicraft and trade. A similar 
idea is applied to the Church; e.g. by Aquinas : see above Note 81. 
Alv. Pel. I. a. 63 G : the triple distinction in the Church (despite its 
unity) according to status, officia et gradus is likened to the triple 
distinction among carnal members according to their natures, their 
tasks and their beauties. See also Randuf, De mod. un. c. 2 
(membra inaequaliter composita), 7 and 1 7. 
Mediate 89. Alv. Pel. I. a. 36 c : there are indivisible members, whose 

Articula- parts would not be members ; e.g. in the Church the faithful man : 

tion. ... 

and there are divisible members, whose parts in their turn are mem- 
bers, as e.g. the 'particular churches' and ecclesiastical colleges. 
Antonius de Butrio, c. 4, X. i, 6, nr. 14 — 5 : membra de membro. 
Marsil. Patav. n. 24 : in the regimen civile, as well as in the regimen 
ecclesiasticum, the analogy of the animal requires a manifold and 



Notes. 135 

graduated articulation ; otherwise there would be monstrosity ; finger 
must be directly joined, not to head but to hand ; then hand to 
arm, arm to shoulder, shoulder to neck, neck to head. Nic. Cus. 11. 
c. 27. [Elsewhere, D. G. R. in. 251, our author gives other illus- 
trations from Innocent IV., Johannes Andreae and others.] 

90. Already S. Bernard (De consid. in. p. 82) exhorts the Pope Papal 
to pay regard to the potestates mediocres et inferiores ; otherwise he ^s'j^°and 
will be putting the thumb above the hand and alongside the arm and the 

so will create a monster : ' tale est si in Christi corpore membra ^rtfcula 
aliter locas quam disposuit ipse.' Marsilius (11. c. 24) employs the tion of the 
same picture when complaining that the Popes have impaired the Church, 
form of Christ's mystical body by disturbing its organic articulation, 
while that body's substance is impaired by the corruption of the 
clergy. The champions of the conciliar party have recourse to the 
same analogy for proof that the mystical body will perish if all power 
be concentrated in its highest member. See Randuf, c. 17 (183); 
Greg. Heimb. De pot. eccl. 11. p. 1615 ff. 

91. Ptol. Luc. II. 26, where, besides the organization of the Organiza- 
natural body, that of the heavenly spheres is adduced. Marsil. Pat. j °" ^?^ 
I. c. 2 and 5 : see above, p. 26. Also Thom. Aquin. Summa cont. pendence. 
gentil. III. c. 76 — 83. Alv. Pelag. i. a. 63 c {ordinatio). Eng. Volk. 

III. c. 21 : in ordinatione debita et proportione ad invicem...partium. 
Nicol. Cus. III. c. I : omnia quae a Deo sunt, ordinata necessario 
sunt. Petr. de Andlo, i. c. 3. 

92. Joh. Saresb. 1. c. Thom. Aq. Summa Theol. i. q. 81, a. i; The 

Lect. 2 ad Rom. 12: in corpore humano quaedam sunt actiones ^^^^°^ 

■^ ^ Function, 

quae solum prmcipalibus membns conveniunt, et quaedam etiam soli 

capiti; sed in ecclesia vicem capitis tenet papa et vicem principalium 

membrorum praelati maiores ut episcopi ; ergo etc. — Ptol. Luc. 11. c. 

23 : debet. ..quilibet in suo gradu debitam habere dispositionem et 

operationem. Marsil. Pat i. c. 2 (above, p. 26) and c. 8 : upon the 

formation and separation of the parts of the State, there must follow 

the allotment and regulation of their officia, ' ad instar naturae 

animalis.' Alv. Pel. I. a. 63 G : diversi actus. Ockham j above. Note 

86. 

93. The difference between an organ and a mere limb is sug- The Idea 
gested by Eng. Volk. iii. c. 16 : pars civitatis a.nd pars regni. Comp. ° '^^*"' 
also MarsiL Patav. i. c 5 ; above, Note 88. 

94. Thom. Aq. Summa Theol. i. q. 96, a, 4 : quandoque The 
multa ordinantur ad unum, semper invenitur unum ut principale et paitr"'"^ 
dirigens ; Summa cont. gentil. iv. q. 76. Ptol. Luc. iv. c. 23 : there 

must be a summum movens controlling all movements of the limbs ; 



136 Political Theories of the Middle Age. 

with this is compatible 'in qualibet parte corporis operatio propria 
primis motibus correspondens et in alterutrum subministrans.' 
Similarly Dante. Comp. Aegid. Col. iii. 2, c. 34 : the king as soul 
of the body. Marsil. Pat. I. c. 17: in the State, as in the animal 
bene compositum, there must be a primum principium et movens; 
otherwise the organism must needs ' aut in contraria ferri aut omni- 
modo quiescere ' : — this is the pars principans. Joh. Par. c. i : 
quemadmodum corpus hominis et cuiuslibet animalis deflueret, 
nisi esset aliqua vis regitiva communis in corpora ad omnium mem- 
brorum commune bonum intendens, so every multitude of men needs 
a unifying and governing force. In closely similar words, Petr. de 
Andlo, I. & 3, who then adds that among the summi moventes there 
must be unus supremus (the Kaiser), in relation to whom the mem- 
bers that are moved by the other moventes are membra de membro. 
95. See above, Notes 67 ff. 
Connexion 96. This argument is often adduced on the papal side to show 
Rightful ^^'^ ^^ Church cannot exist without the Pope, and that no one who 
Head. is not connected with the Pope can belong to the Church. Comp. 
e.g. Alv. Pel. I. a. 7, 13, 24, 28, 36, 38; Card. Alex. D. 15 summa. 
Need for 97. It is urged that there may be unity although there are many 

Head * rulers; that 'Ca& principatus as an institution is distinguishable from its 
denied. occupant for the time being ; that the mystical body may be headless 
for a time : in particular the Church, which always retains its celestial 
Head. Thus, Ockham, Dial. I. 5, c. 13 and 24, maintains the possi- 
bility of the continued existence of the Church after severance from 
the ecclesia Romana; for, he expressly says, though the similitude 
between the mystical body of Christ and the natural body of man 
holds good at many points, still there are points at which it fails. 
To the same effect Petr. Alliac. in Gerson, Opera, i. 692 and 11. 112; 
Gerson, De aufer. pap. 11. 209 ff.; Randuf, De mod. un. c 2, ib. 163; 
Nic. Cus. I. c. 14 and 17. 
The State 98. Comp. Thom. Aq. Comment, ad Polit. p. 366 (ratio.. .con- 
Humi'n"^ stituens civitatem). He teaches that the constitution of the Church 
Reason, is the work of God (Summa adv. gentil. iv. c 76), but regards the 
creation of the State as a task for the kingly office, which here 
imitates the creation of the World by God and of the Body by the 
Soul (De reg. princ. i. c. 13). Ptol. Luc. iv. c. 23. Aegid. Rom. 
De reg. princ. iii. i, c. i, and in. 2, c. 32. Eng. Volk. De Ortu, 
c. I (ratio imitata naturam). Aen. Sylv. c. i, 2, 4. — More of this 
below in Note 303. 
MarsHius 99. Mars. Pat. I. c. 15. In the natural organism Nature, the 

causa movens, first makes the heart which is the first and indispensable 



Notes. 



137 



portion, and bestows on it heat as its proper force, whereby the Origin 
heart then, as the proper organ for this purpose, constitutes, sepa-l^'J"^ 
rates, diiferentiates and connects all the other parts, and afterwards 
maintains, protects and repairs them. On the other hand, the 
creative principle of the State is the rational ' anima universitatis vel 
eius valentioris partis.' This, following the model set by Nature, 
generates a pars prima, perfectior et nobilior, answering to the heart, 
and being the Princeship {principatus). On this the said anima 
bestows an active power, analogous to vital heat, namely, the 
auctoritas iudicandi, praecipiendi et exequendi. Thus the Princeship 
is empowered and authorized to institute the other parts of the State. 
But, just as the heart can only work in the form and power that 
Nature has given to it, so the Princeship has received in the Law 
(/(?*•) a regulator of its proceedings. In accordance with the measure 
set by the Law, the Princeship must establish the different parts of 
the State, equip them with their officia, reward and punish them, 
conserve them, promote their co-operation, and prevent disturbance 
among them. Even when the State's life is started, the Ruling power, 
like the heart, can never stand still for an instant without peril. 

100. Thom. Aq. Summa Theol. 11. i, q. 91, a. i : tota com- The 
munitas universi gubernatur ratione divina ; and therefore the ipsa R'^°* , 
ratio gubernationis rerum, which exists in God sicut in principe 
universitatis, has the nature of a lex, and indeed of a lex aeterna. 
Comp. ib. I. q. 103 (although according to a. 6 'Deus gubernat 
quaedam mediantibus aliis') and 11. i, q. 93, a. 3; Summa cont 
gentil. III. q. 76 — 7. Dante, i. c. 7, and in. c. i6. And see above, 
Notes 7, 8, II, 44, 67, 71. 

loi. See above, Note 15. John of Salisbury (Policr. iv. c. i, Divine 
pp. 208 — 9, and VI. c. 25, pp. 391 — 5) is especially earnest in the 2"^"a°e 
maintenance of the divine origin of temporal power. Ptol. Luc. 
(ill. c. I — 8) gives elaborate proof of the proposition 'Omne 
dominium est a Deo': it is so ratione entis (for the ens primum is 
the principium) ; and it is so ratione finis (for all the purposes of 
government must culminate in God, who is ultimus finis). Even 
dominium tyrannicum is of God, who suifers it to exist as a method 
of chastisement, but Himself will not leave tyrants unpunished. 
Then Alv. Pel. (i. a. 8 and 41 c — k) repeats this, but expressly says 
that it does not disprove the sinful origin of the State. He (i. a. 56 b) 
distinguishes : materialiter et inchoative the temporal power proceeds 
from natural instinct and therefore from God : perfecte et formaliter it 
derives its esse from the spiritual power ' quae a Deo speciali modo 
derivatur.' 



138 Political Theories of the Middle Age. 

Imme- loz- See above, Notes 38, 40, 44, and, as to the Roman 

diately Empire, Notes 53—55. 
Divine \j*j tj*j 

Origin of 1 03. Alv. Pel. I. a. 12, 13 u and x, 18. Aug. Triumph, l q. i, 

the State, a. I ; a. 5 : the papal power comes from God specialius than any 
as Chris^^s o'l^fif power, God being immediately active in election, government 
Vicar. and protection; still He does not immediately generate each par- 
ticular pope (as He generated Adam, Eve and Christ), but this 
happens mediante homine, as in the generation of other men ; but 
the electoral college only has the designatio personae, for auctoritas et 
officium, being quid formale in papain, come from Christ (q. 4, a. 3) 
Petr. de Andlo, i. c. 2. 
The 104. See above, Note 40. The doctrine of the Karolingian 

S"chrUt's ^'™^ makes the Emperor vicarius Dei. Then during the Strife over 
Vicar. the Investitures this is for the first time attacked ; and then defended, 
e.g. by P. Crassus, p. 44, by Wenrich (Martene, Thes. Nov. Anecd. 
I. p. 220), and by the Kaisers and writers of the Hohenstaufen 
age. Comp. Dante, iii. c. 16: solus eligit Deus, solus ipse con- 
firmat; the Electors are merely denuntiatores divinae provideniiae 
(though sometimes, being blinded by cupidity, they fail to perceive 
the will of God) J sic ergo patet quod auctoritas temporalis mon- 
archiae sine ullo medio in ipsum de fonte universalis auctoritatis 
descendit; qui quidem fons in arce suae simplicitatis unitus in 
multiplices alveos inHuit ex abundantia bonitatis. Bartol. prooem. 
D. nr. 14: Deus. ..causa efficiens. Ant. Ros. i. c. 47 — 8 and 56: 
the Electors, the Pope (in so far as he acts at all) and the Folk, are 
only organa Dei; so the Empire is immediate a Deo. Gerson, 
IV. p. 586. — Comp. Ockham, Octo q. 11. c. i — 5, and iv. c. 8 — g, 
and Dial. iii. tr. 2, 1. i, c, 18 ff., where three shades of this 
doctrine are distinguished, for we may suppose (i) a direct gift by 
God, or (2) a gift minis terio creaturae, i.e. by the agency of the 
Electors (whose action may be likened to that of the priest in 
baptism, or that of a patron in the transfer of an office), or (3) a 
difference between the purely human heathen Empire and the 
modern Empire legitimated by Christ. 

Mediation 105. Joh. Saresb. V. c 6 : mediante sacerdotio. Aug. Triumph. 

ofthe . _ ^ / ,- » 

Church '• I- ^' ^- I' "• q- 3S> a. I, q. 36, a. 4 (mediante papa), q. 45, a. i. 

theTtate "^^^^ ^^^' '' ^' ^' ° ^"'^ ^^' ^^' ^^' ^^ ^ ^* Deo... mediante in- 
and God. stitutione humana). Petr. de Andlo, 11. c. g : imperium a Deo... per 
subalternam emanationem. So in the Quaestio in utramque (a. 5) 
and the Somnium Virid. (i. c. 88, 180 — i) the only dispute is 
whether kings are immediately or but mediately ministri Dei. See 
above. Note 22. 



Notes. 139 

106, See Dante, 1. c. Pet. de Andlo, i. c. 2 : regimen mundi a Delega- 
summo rerum principe Deo eiusque divina dependet voluntate ; He God of all 
institutes the pope as Vicar ; from the pope proceeds the imperialis Human 
auctoritas ; and from it again 'cetera regna, ducatus, principatus et 
dominia mundi subalterna quadam emanatione defluxerunt.' Also 

II. c. 9. Tengler, Laienspiegel, p. 14, 17, 56. 

107, Thom. Aq. De reg. princ. I. c. 2 : manifestum est quod Monarchy 

-. , , and Unity. 

unitatem magis etiicere potest quod est per se unum quam plures ; 
and c s; Summa Theol. 11. i, q. 105, a. i; 11. 2, q. 10, a. 11 j 
Summa cont. gentil. iv. 76 : optimum autem regimen multitudinis 
est ut regatur per unum ; quod patet ex fine regiminis, qui est pax : 
pax enim et unitas subditorum est finis regentis; unitatis autem 
congruentior causa est unus quam multi j Comm. ad Polit. p. 489 and 
507 ; Aegid. Rom, De reg. princ. iii. 2, c. 3 ; Dante, i. c. 5 — 9 and 
the practical arguments in c. 10 — 14; Job. Paris, c. i; Alv. Pel. i. 
a. 40 D and 62 c; Ockham, Octo qu. iii. c. i and 3 ; Dial. in. tr. i, 

I. 2, c. r, 6, 8, 9 — 11; Somn. Virid. i. c. 187; Gerson, iv. 585 (ad 
totius gubernationis exemplum, quae fit per unum Deum supremum); 
Nicol. Cus. III. praef. ; Laelius in Gold. 11. p. 1595 ff.; Anton. Ros. 

II. c. 5 — 7 ; Petrus de Andlo, i. c. 8 ; Patric. Sen, De regno, i. i and 
13, p. 59 (unitas per imitationem ficta). With some divergence 
and greater independence, Eng. Volk. i, c. 11 — 12: now-a-days 
only a monarchy is able to unite wide territories and great masses 
of men. 

108. Dante, i. c. 15. Similarly Pet. de Andlo, i. c. 3 : social Singleness 
order depends on a sub-et-super-ordination of wills, as natural order Monarchy, 
upon a sub-et-super-ordination of natural forces. 

109. Thom. Aq. Summa cont. gentil. iv. q. 76 : the regimen The 
ecchsiae, being of divine institution, must be optime ordinatum, and ^on'^jchy. 
therefore must be such ut unus toti ecclesiae praesit. Alv, Pel. i. 

a. 40 D and 54. Joh. Par. c. 2. Ockham, Dial, in. tr. i, 1. 2, c. i, 
3 — II, 18 — 19, 29; also I. S, c. 20 — 21. Somn. Virid. 11. c. 168 — 
179. Ant. Ros. II. c. I — 7. 

no. Above all, Dante, lib. i,; in c, 6, it is argued that the Divine 
ordo totalis must be preferable to any ordo partialis. Eng. Volk. De J,1?jg^'°" 
ortu, c. 14 — 15. Ockham, Octo q. in. c, i and 3; Dial. iii. tr. 2, poral 
1. I, c. I and 9, Aen, Sylv. c. 8. Ant. Ros. 11. c. 6. Petr. de Andlo, Monarchy. 
I. c. 8. 

III. Above, Note 107. Thom. Aq. 1. c. ; it is so in tvexy populus Monarchy 
unius ecclesiae. Compare his statements (in lib. iv. Sent. d. 1 7, q. 3, ^^i Form 
a. 3, sol. 5, ad 5) as to the relation of pope, bishop, and parson as of Govem- 
the God-willed monarchical heads ' super eandem plebem immediate 



I40 Political Theories of the Middle Age. 



publics. 

Com- 
parison of 
Forms of 
Govem- 
Kient. 



An Aris- 
tocratic 
World- 
State. 

Necessity 
of Mon- 
archy 
in the 
Church 
doubted. 



constituti.' Dante, i. c. 6. Petr. de Andlo, i. c. 8. In particular, 
Ant. Ros. II. c. 6 (above, Note 64) as to the monarchical structure of 
the five corpora mystica. 
References 112. Thorn. Aq. De reg. princ, I. c. 4. Eug. Volk. De reg, 
princ. I. c. 12 — 16. Petr. de Andlo, i. c. 8. Ant. Ros. 11. c. 4 (on 
the other hand, c. 7, pp. 314 — 9). 

113. Ptol. Luc. II. c. 8, and iv. c. 8, goes so far as to hold that 
in the status integer of human nature the regimen politicum would be 
preferable; and even in the corrupt state of human nature the 
dispositio gentis may decide ; thus e.g. the courage of the Italian race 
leaves no choice but republic or tyranny. Eng. Volk, i. c. 16. 
Ockham, Octo q. ill. c. 3 and 7 (variances in accord with congruentia 
temporum) ; also Dial. iii. tr. 2, 1. i, c. 5, 

114. Ockham, Octoq. in. c. 3, 6, 8, and Dial. in. tr. 2, 1. i, 
c. I, 4, 9, 13: it is possible that the form of government best suited to 
a part may not be the same as that best suited to the whole. 

115. Ockham, Dial. in. tr. i, 1. 2, c. 2, 12 — 4, 16 — 7, 25, 30. 
Even with an aristocratic constitution, unity is possible : pluralitas 
pontificum non scindit unitatem ecclesiae : what is good for a pars 
and parvum may not be always good for a totum and magnum. The 
divine institution of the primacy is expressly disputed by Marsilius, 
II. c. 15 — 22, III. concl. 32 and 41, and, among the Conciliar 
pamphleteers, by Randuf (De mod. un. eccl. c. 5) and others, who 
are opposed by d'Ailly, Gerson, and Breviscoxa (Gers. Op. i. p. 662, 
II. p. 88, and i. p. 872). 

116. Patricius of Sienna in one place (De inst. reip. i. i) ex- 
pressly declares for a Republic; elsewhere (De regno i. i) he gives 
a preference to Monarchy, but would pay heed to differences between 
various nations. 

117. Mars. Pat. i. c. 17 and iii. concl. 11 (even for composite 
States). Ockham, Dial. in. tr. 2, 1. 3, c. 17 and 22. 

118. Aegid. Rom. in. 2, c. 3: plures homines principantes 
quasi constituunt unum hominem multorum oculorum et multarum 
manuum : but the good Monarch might become such a collective 
man by the association of wise councillors ; and at any rate he is 
more unus than the Many can be 'in quantum tenent locum unius. 
— Mars. Pat. i. c. 17: 'quoad oflBcium principatus' the //a«j must 
form a unit, so that every act of government appears as ' una actio 
ex communi decreto atque consensu eorum aut valentioris partis 
secundum statutas leges in his.'— So Ockham, Dial. in. tr. 2, 1. 3, c. 
17, with the addition that 'plures gerunt vicem unius et locum 
unius tenent.'— Patric. Sen. De inst. reip. i. i and in. 3 : the ruling 



Preference 
of the Re- 
publican 
Form. 



' Unitas 
princi- 
patus' in a 
Republic. 
Repub- 
lican 

Assembly 
as a 

Collective 
Man. 



Notes. 141 

assembly constitutes 'quasi unum hominem ' or • quasi unum corpus ' 
with manifold members and faculties j i. 5 : • multitudo universa 
potestatem habet collecta in unum ubi de republica sit agendum, 
dimissi autem singuli rem suam agunt.' 

119. Thus Dante, Mon. 1. c. 6, sees in the Ruler 'aliquod unum The 
quod non est pars.' So again Torquemada seeks to refute the whole ^ove and 
Conciliar Theory by asserting that the very idea of a Monarch neces- outside 
sarily places him above the Community, like God above the world Group, 
and the shepherd above the sheep : Summa de pot. pap. c. 26, 48, 

83, 84; De cone. c. 29, 30, 44. 

120. Joh. Saresb. Policr. iv. c. i: est...princeps potestas The 
publica et in terris quaedam divinae maiestatis imago; v. c. 25, ^""g^^jJl^ 
p. 391 — 5- Thom. Aq. De reg. i. c. 12 — 14: the erection of the State, Divinity, 
being like unto God's creation of the world, and the government of 

the State, being like unto God's government of the world, are the 
affairs of the Ruler. 

121. Gl. on c. 17 in Sexto i, 6, v. homini: in hac parte non est Apotheo- 
homo sed Dei vicarius. Gl. on prooem. CI. v. papa : nee Deus nee p^ °g "^' 
homo. Petr. Blesensis, ep. 141. Aug. Triumph, i. q. 6, a. i — 3 
(identity of the Pope's sentence with God's, and therefore no appeal 

from the one to the other); q. 8, a. 1 — 3, q. 9, q. 18. Alv. Pel. i. a. 13 
(non homo simpliciter, sed Deus, i.e. Dei vicarius), 37 y (Deus 
quodammodo, quia vicarius), 12 (unum est consistorium et tribunal 
Christi et Papae in terris). Bald, on 1. ult. C. 7, 50. Ludov. Rom. 
cons. 345, nr. 6 — 8. ZenzeUnus on c. 4, Extrav. Joh. XXII. nr. 14. 
Bertach. v. papa. 

122. Already under the Hohenstaufen a formal apotheosis of the Apotheo- 
Emperor may be often found. See, e.g. Pet. de Vin. Ep. 11. c. 7, Emperor, 
and III. c. 44. Bald. i. cons. 228, nr. 7 : imperator est dominus 

totius mundi et Deus in terra; cons. 373, nr. 2 ; princeps est Deus 
in terris. Joh. de Platea, 1. 2, C. 1 1, 9, nr. i : sicut Deus adoratur 
in coelis, ita princeps adoratur in terris ; but only improprie. Theod. 
a Niem, p. 786 : to the Emperor is due 'devotio tanquam praesenti 
et corporali Deo.' Aen. Sylv. c. 23 : dominus mundi, Dei vicem ia 
temporalibus gerens. Jason, 11. cons. 177, nr. 11 : princeps mundi 
et corporalis mundi Deus. 

123. Thus already in the Councils of Paris and Worms of 829 Kingship 
(M. G. L. I. p. 346 if.) we find an exposition of the doctrine that the '^ O^^e. 
kingship is a ' ministerium a Deo commissum,' that the Bex is so 
called a recte agendo, that, ceasing to rule well, he becomes a 
tyrant Similarly in Concil. Aquisgran. 11. ann. 836 and Concil. 
Mogunt ann. 888, c. 2 in Mansi xiv. p. 671 and xvm. 62; c£ 



142 Political Theories of the Middle Age. 



Princes 
exist for 
the 

Common 
Weal. 



Purpose 
of the 
Ruler. 



Decline 
towards 
Tyranny. 



Hefele iv. p. 91 and 546. Hincmar, Op. i. 693. Manegold v, 
Lautenbach, I.e., expressly uses the phrase vocabulutn officii. John 
of Salisbury, iv. c. i — 3 and 5, says ' minister populi ' and ' publicae 
utilitatis minister.' Hugh of Fleury, I. c. 4, 6, 7, ' ministerium, 
officium regis.' Thom. Aq. De reg. prin. i. c. 14. Alv. Pel. i. a. 62, i. 
Ptol. Luc. II. 5 — 16. Dante, i. c. 12: princes are 'respectu viae 
domini, respectu termini ministri aliorum,' and in this respect the 
Emperor is ' minister omnium.' Eng. Volk. tr. 11. — vii. Gerson, iv. 
p. 597. Ant. Ros. I. c. 64: officium publicum; like a tutor. Pet 
de Andl. i. c. 3, 11. c. 16 — 18. 

124. In particular, Joh. Saresb. iv. c. i — 3, and 5. Thom. 
Aquin. De reg. lud. q. 6 : Principes terrarum sunt a Deo instituti, 
non quidem ut propria lucra quaerant, sed ut communem utilitatem 
procurent; Comm. ad Polit. p. 586. Ptol. Luc, iii. c. 11: regnum 
non est propter regem, sed rex propter regnum. Eng. Volk. De reg. 
princ. V. c. 9 : sicut tutela pupillorum, ita et procuratio reipublicae 
Inventa est ad utilitatem eorum qui commissi sunt, et non eorum qui 
commissionem susceperunt; 11. c. 18, iv. c. 33 — 4. Dante, i. c. 12: 
non enim cives propter consules nee gens propter regem, sed a con- 
verso consules propter cives et rex propter gentem. Ockham, Octo 
q. III. c. 4, and i. c. 6. Paris de Puteo, De synd. p. 40, nr. 21. 
Petrus de Andlo, i. c. 3. 

125. Councils of Paris and Worms, an. 829: to rule the Folk 
with righteousness and equity, to preserve peace and unity. Petr. 
Bles. Epist. 184, p. 476 : ut recte definiant et deeidant examine quod 
ad eos pervenerit quaestionum. Dante, Mon. i. c. 12. Thom. Aq. 
Comm. ad Polit., p. 592, 595 ff. Eng. Volk. i. c. 10. Gerson, in. 
p. 1474. Ockham, Octo q. in. c. 5, declares a plenitudo potestatis 
incompatible with the best Form of Government, which should 
promote the liberty and exclude the slavery of the subjects; and 
(viii. c. 4) he opines that the Kaiser has smaller rights than other 
princes just because it behoves the Empire to have the best of 
constitutions. 

126. Councils of Paris and Worms, an. 829. Council of Mainz, 
an. 888, e. 2. Nicolaus L Epist. 4 ad Advent. Metens.: si iure 
principantur ; alioquin potius tyranni credendi sunt quam reges 
habendl Petr. Bles. L c.: Principatus nomen amittere promeretur 
qui a iusto iudicii declinat tramite. Hugo Flor. i. c. 7 — 8. Joh. Sar 
VIII. c. 17 — 24. Thom. Aq. De reg. princ. i. c. 3 — 11. Ptol. Luc. 
III. c. II. Vine. Bellov. vii. c. 8. Eng. Volk. i. c. 6 and 18. 
Alv. Pel. I. a. 62 D — H. Ockham, Dial. in. tr. i, 1. 2, c. 6 flf. ; Octo 
q. in. c. 14. Gerson, l.c. Paris de Puteo, L c pp. 8 — 51. 



Notes. 143 

• 127. This principle was never doubted. See e.g. Pet. Bles. ep. God 
131, p. 388. Thorn. Aq. Summa Theol. 11. i, q. 96, a. 4 (quia ad hoc Man is to" 
ordo potestatis divinitus concessus se non extendit) and 11. 2, q. 104, be obeyed. 
a. 5. To the same effect the 'Summists' [i.e. the compilers of 
Summae Confessorum, manuals for the use of confessors], e.g. Joh. 
Friburgensis, Sum. Conf. lib. 2, tit. 5, q. 204. 

128. Thus Hugh of Fleury, who therefore prescribes that tyrants Passive 
be tolerated and prayed for, but that commands which contravene ^^^ ' 
the law of God be disobeyed, and that punishment and death be 
borne in the martyr's spirit; i. c. 4, p. 17 — 22, c. 7, p. 31, c. 12, p. 44, 

II. p. 66. — Baldus also on I. 5, Dig. i, i, nr. 6 — 7, declares against 
any invasion into the rights of Rulers. 

129. Hug. de S. Victore, Quaest. in epist. Paul. q. 300 (Migne, Nullity of 
vol. 17s, p. 505): Rages et principes, quibus obediendum est in^^^j^j^at 
omnibus quae ad potestatem pertinent. Thom. Aq. Sum. Theol. are ultra 
II. 2, q. 104, a. 5 : only in special circumstances or for the avoidance Jjatuentis. 
of scandal and danger, need a Christian obey the command of an 
usurper or even the unrighteous command of the legitimate ruler. 

So also Vincent Bellov. x. c 87 and Joh. Friburg 1. c. (Note 127). 
Ockham, Dial. in. tr, 2, 1. 2, c. 20: all men owe to the Emperor 
immediate but conditional obedience : to wit, ' in Ileitis ' and ' in his 
quae spectant ad regimen populi temporalis,' so that, e.g. a pro- 
hibition of vidne-drinking would not be binding. And compare c. 26 
and 28. Nic Cus. iii. c. 5. Decius, Cons. 72, nr, 2 : superior! non 
est obediendum quando egreditur fines sui officii. 

130. Already Manegold of Lautenbach (see Sitzungsber. d. bair. Active 
Akad. an. 1868, 11. 325) teaches that the king who has become a and'Ty?*^' 
tyrant should be expelled like an unfaithful shepherd. Similar rannicide. 
revolutionary doctrines were frequently maintained by the papalistic 

party against the wielders of State-power. John of Salisbury 
emphatically recommends the slaughter of a tyrant 'qui violenta 
dominatione populum oppremit,' for a tyranny is nothing else than 
an abuse of power granted by God to man. He vouches biblical and 
classical examples, and rejects only the use of poison, breach of 
trust, and breach of oath. See Poller, in. c. 15, iv. c. i, vi. c. 24—8, 
VIII. c. 17 — 20. Thomas of Aquino is against tyrannicide, but in 
favour of an active resistance against a regimen tyrannicum, for such 
a regimen is non iustum, and to abolish it is no seditio, unless indeed 
the measures that are taken be such that they will do more harm 
than would be done by tolerating the tyranny: Sum. Theol. 11. 2, 
q. 42, a. 2, ad 3, q. 69, a. 4 ; De reg. princ. i. c. 6 ; Comm. ad 
Polit. p. 553. To the same effect, Aegid. Rom. De reg. princ. i. c 6. 



144 Political Theories of the Middle Age. 



The Pope' 
Plenitude 
of Power. 



Limits to 
Papal 
Sove- 
reignty. 



There is an elaborated doctrine of active resistance in Ockham, Dial. 
III. tr. 2, 1. 2, c. 26 and 28 (it is ius gentium). Somn. Virid. I. & 141. 
Henr. de Langenstein, Cons, pads, c. 15. Gerson, iv. 600 and 624. 
Decius, Cons. 690, nr. 13. Bened. Capra, Reg. 10, nr. 42 : the 
execution of a tyrannical measure is an act of violence which may be 
violently resisted. Henricus de Pyro, Inst. I. 2, § i : iudici et 
ministris principum licet resistere de facto quando ipsi sine iure 
procedunt. — As to the thesis in which Jean Petit on 8 March, 1408 
defended tyrannicide (Gerson, Op. v. pp. 15 — 42), the opposition of 
Gerson (Op. iv. 657 — 80) and the qualified condemnation of the 
thesis by the Council of Constance (sess. xv. of 6 July, 1415), see 
Schwab, Gerson, pp. 609 — 46. Wyclif (art. damn. 15 and 17) and 
Hus (art. 30) held that a Ruler who is in mortal sin is no true ruler. 
! 131. The first to elaborate in idea and in phrase a 'plenitudo 
ecclesiasticae potestatis' vested by God in the Pope, whence all 
other ecclesiastical power has flowed and in which all other ecclesi- 
astical power is still comprised, was Innocent III., although 
substantially the same doctrine had been taught by Gregory VII., 
lib. I., ep. 55% ann. 1075. For Innocent III. see c. 13, X. 4, 17; 
c. 23, X. 5, 33; lib. I, ep. 127, p. 116, lib. 7, ep. i and 405, pp. 279 
and 405, lib. 9, ep. 82, 83 and 130, pp. 898, 901 and 947. Compare 
Innocent IV. on c. i, X. 1,7; c. 10, X. 2, 2 ; c. 19, X. 2, 27, nr. 6. 
Durantis, Spec. i. i de legato § 6, nr. i — 58. Thom. Aquin. lib. 4, 
Sent. d. 20, q. 4, a. 3, ad 3, quaestiunc. 4, sol. 3 : Papa habet 
plenitudinem potestatis pontificalis quasi rex in regno, episcopi vero 
assumuntur in partem soUicitudinis quasi iudices singulis civitatibus 
praepositi. See also lib. 2, dist. et quest ult. ; Summa Theol. 11. 2, 
q. I, a. 10 J Opusc. cont. error. Graec. 11. c. 34 and 38. Aegid. 
Rom. De pot. eccl. iii. c. 9 — 12: tanta potestatis plenitudo, quod 
eius posse est sine pondere, numero et mensura. Petr. Palud. in 
Raynald, a. 1328, nr. 30. The doctrine reaches the utmost exalta- 
tion in Augustinus Triumphus, i. q. i, 8, 10 — 34, 11. q. 48 — 75, but 
goes yet further in Alvarius Pelagius, i. a. 5 — 7, 11 — 12, 52 — 58: 
potestas sine numero, pondere et mensura; it is exceptionless, 
all-embracing, the basis of all power, sovereign, boundless and 
always immediate. Durantis, De modo eccl. cone. P. iii. Turrecre- 
mata, Summa de eccl. 11. c. 54, 65. Petrus a Monte, De primatu, 
f. 144 ff. 

132. ' Lex divina et lex naturalis, articuli fidei et sacramen ta novae 
legis' were always recognized as limits. See Alex. III. in c. 4, X. 5, 19 
and Innocent III. in c. 13, X. 2, 13. Joh. Sar. Ep. 198, p. 218. 
Thom. Aq. Summa Theol. 11. i, q. 97, a. 4, ad 3 j Quodlib. iv. a. 13. 



Notes. 145 

Aug. Triumph, i. q. 22, a. i ; Alv. Pel. i. a. 7 and 46. Comp. 
Ockham, Dial. in. tr. 1, 1. i, c. i, and tr. 2, 1. i, c. 23. 

133. Ockham makes an elaborate attack on the doctrine which Limited 
teaches that, at any rate in spiritual affairs, the Pope has a plenitude ^Jonarchy 
of power in the sight of God and man. This (he argues) would be Pope, 
incompatible with 'evangelical Hberty' for it would establish an 
'intolerable servitude.' In all, or at any rate all normal, cases the 
Pope's power is potestas limitata. Ockham, Octo q. i. c. 6, in. 

c. 4 — 5, Dial. III. tr. i, 1. i, c. 2 — 15, tr. 2, 1. x, c. 23. Compare 
Joh. Paris, c. 3 and 6; Marsil. Patav. 11. c. 22 — 30; Somn. Virid. 

I. c. 156 — 161 ; Randuf, De mod. un. c. 5, 10, 23, 28; Greg. Heimb. 

II. p. 1604. 

134. Ockham, Octo q. i. c. 15 and in. c. 9 : obedience is due Condi- 
only ' in his quae necessaria sunt congregationi fidelium, salvis q^"^- 
iuribus et libertatibus aliorum ' ; if the Pope transcends his sphere of due to the 
competence, every one, be he prelate, emperor, king, prince or La^^'of^^^ 
simple layman, is entitled and bound to resist, regard being had to Necessity, 
time, place and opportunity. — During the Great Schism the doctrine 

of a right of resistance and rejection given by Necessity became 
always commoner. See Matth. de Cracovia, Pierre du Mont de 
St Michel and other Galileans in Hubler, pp. 366, 370 — 2, 377; 
also ib. p. 121, note 8 ; also ib. 373 ; Gerson, Trilogus, n. p. 83 ff. ; 
Theod. a Niem, De schism, in. c. 20 (resistance, as against a 
bestid) \ Randuf, De mod. un. c. 9 — 10; Ant. Ros. n. c. 23, 27 — 30, 
in. c. 4—6. Nicholas of Cues (Op. n. pp. 825—9) held to this 
doctrine even after he had fallen away from the Conciliar party. 

135. See the following sections. 

136. Ockham refutes at large the opinion that the lex divina «;«/ Limited 
naturalis is the only limit to imperial power: on the contrary, in"^"'^ ^ 
'limitata est imperatoris potestas, ut quoad liberos sibi subiectos et Empire, 
res eorum solummodo ilia potest quae prosunt ad communem 
utilitatem.' Dial. in. tr. 2, 1. 2, c. 26—8: in relation to persons, 

c 20; in relation to things, c. 21 — 5. Gerson, iv. pp. 598, 601. 
Nic. Cus. III. c. 5. See above, Notes 126 — 30, 

1^7. See above. Note 16. Placentinus de var. actionum, i. 4. The State 

of !Ns.turc 

Summa Rolandi, C. 23, q. 7, p. 96. Addition to the Gloss on § 5, 
Inst 2, I, v. publicus [which addition teaches that communia are 
those things which by virtue of the ius naturak primaevum still 
remain in their original condition as common to all]. Joh. Nider, 
Tract, de Contr. (Tr. U. J. vi. p. 279), tr. v. K. Summenhard, De 
contr. tr. i, q. 8 — 11 [a German jurist, ob. 1502]. — But Aquinas, 
Summa Theol. i. q. 96, a. 4 and Ptolemy of Lucca, De reg. pr. in. 
M. >" 



146 Political Theories of the Middle Age. 



Begin- 
nings 
of the 
Original 
Contract. 



Right of a 
People to 
choose a 
Superior. 

The 

People as 
instru- 
ments of 
God. 



God and 
the People 
as the 
Source of 
Power. 



c. 9, and IV. c. 2 — 3, teach that dominium politicum would have come 
into existence even in the State of Innocence, though not dominium 
servile. [Elsewhere (D. G. R. iii. 125) our author has spoken of the 
patristic doctrine that lordship and property are consequences of the 
Fall. He there refers to various works of Augustine and sends us 
for other patristic utterances to Hergenrother, Katholische Kirche 
und christlicher Staat, Freib. 1872, p. 461. J 

138. Already in the course of the Investiture Quarrel, Manegold 
of Lautenbach (above, Note 130) asked : Nonne clarum est, merito 
ilium a concessa dignitate cadere, populum ab eius dominio liberum 
existere, cum pactum pro quo constitutus est constat ilium prius 
irrupisse? On the anti-papal side the only answer was that the 
People's Will when once uttered became a necessitas, and that 
therefore the grant of lordship was irrevocable. See the pronounce- 
ment of the Anti-Gregorian cardinals in Sudendorf, Registr. 11. p. 41. 
Engelbert of Volkersdorf is the first to declare in a general way that 
all regna et principatus originated in a pactum subiectionis which 
satisfied a natural want and instinct : De ortu, c. 2. Marsil. Pat. 
I. c. 8, 12, 15. Ockham, Dial. in. tr. 2, 1. 2, c. 24: the ius humanum 
which introduced lordship and ownership in place of the community 
of goods existent under divine and natural law, was a ius populi xa.A 
was tiansferred by the populus to the Emperor, along with the 
imperium. Nic. Cus. in. c. 4. Aen. Sylv. c. 2. 

139. Eng. Volk., De ortu, c. 10. Lup. Bebenb. c. 5 and 15. 
Ockham, Octo q. 11. c. 4—5, v. c. 6, viii. c. 3. Baldus, 1. 5, Dig. 
I, I, nr. 5 and 8; 1. 2, Cod. 6, 3, nr. 3. Paul. Castr. 1. 5, Dig. i, i, 
lect. I, nr. 5, and lect. 2, nr, 17 — 18. 

140. Joh. Paris, c. 11 and 16: populo faciente et Deo in- 
spirante. Mars. Pat. i. c. 9 : where men institute a king, God is 
causa remota. Ockham, Dial. iii. tr. 2, 1. i, c. 27 : imperium a Deo, 
et tamen per homines, scil. Romanos. Ant. Ros. i. c. 56 : imperium 
immediate a Deo, per medium tamen populi Romani, qui tanquam 
Dei minister et instrumentum eius iurisdictionem omnem in ipsum 
transtulit. — Somewhat divergently Almain, De auct. eccl. c. i (Gers. 
Op. II. pp. 978 and 1014) : God gives the power to the communilas 
in order that this power may be transferred to the Ruler. 

141. Nicol. Cus. II. 19, HI. praef. and c. 4, argues that all 
power in Church and State comes both from God and from Man, for 
the voluntary subjection of men gives the material power and God 
grants the spiritual force. Is it not divine, and not merely human, 
when an assembled multitude decides as though it were one heart 
and one soul (11. c. 5 and 15) ? 



Notes. 147 

142. [The famous text in question is 1. i, Dig. i, 4 and Inst. The Lex 
I, 2, 6 : Quod principi placuit legis habet vigorem : utpote cum lege ^^S"*- 
regia, quae de imperio eius lata est, populus ei et in eum onine suum 
imperium et potestatem conferat] Gloss on 1. 9, Dig. 1,3; 1. i, Dig. 

I, 4; 1. un. Dig. I, II J 1. 2, Cod. 8, 53; 1. 11, Cod. i, 17 v. solus 
imperator; and on i. Feud. 26. Jac. Aren. Inst, de act. nr. 5, p. 277. 
Cinus, 1. 4, Cod. 2, 54. Baldus, 1. i, Cod. i, i, nr. 1—12. Innoc. 
c. 1, X. I, 7, nr. I — 2 : papa habet imperium a Deo, imperator a 
populo. Dante, m. c. 13 — 4. Lup. Bebenb. c. 5, p. 355 : olim 
tenuit monarchiam imperii populus urbis Romanae ; postea transtulit 
in ipsum imperatorem. Ockham, Octo q. 11, c. 4 — 5 ; Dial. in. tr. 2, 
1. I, c. 27 — 28. Aen. Sylv. c. 8. Ant. Ros. 1, c. 32 and 36. 

143. Thus Engelbert, Marsilius, Ockham and ^neas Sylvius, Voluntary 
as in Note 138. In particular, Nic. Cus. 11. c. 12 : the binding force Subjection 
of all laws rests upon ' concordantia subiectionalis eorum qui Ground of 
ligantur'; 11. c. 13: all power flows from the free ' subiectio ^°'''^^^'P" 
inferiorum ' ; iii. c. 4 : it arises ' per viam voluntarie subiectionis et 
consensus'; 11. c. 8 and 10. 

144. See above. Note 54. 

145. Ockham, Dial. in. tr. 2, 1. i, c. 27, vouching Gloss on c. 6, 
X. I, 2. Ant. Ros. V. c. 2 (true even for the Babylonian empire : 
with voucher of Dig. 3, 4, Innocentius and Bartolus). 

146. See the letter of the Senatus Populusque Romanus to King Rights 
Conrad in Jaff^, Monum. Corbeiens. p. 332 (also Otto Fris. Gesta°^** 
Frid. I. c. 28): the Kaiser has the 'imperium a Deo,' but ' vigore of Rome 
senatus et populi Romani ' : he ought to dwell ' in urba quae caput ^J*"™ ^^. 
mundi est.' Also Otto Fris. 1. c. n. c. 21; letter of Wezel, ann. vacant. 

1 152, in Jaffe, 1. c. p. 542 : set cum imperium et omnis reipublicae 
dignitas sit Romanorum et dum imperator sit Romanorum non 
Romani imperatoris,...quae lex, quae ratio senatum populumque 
prohibet creare imperatorem? — Even the Hohenstaufen, however 
decisively they may assert their divine right as against such claims 
as these (cf. ep. an. 1152 in Jaffd, 1. c. p. 449, and Otto Fris. in. c. 16, 
and IV. c. 3), treat Rome as the capital town of the Empire and the 
Roman townsfolk as in a special sense the imperial folk (cf. Petr. de 
Vineis, ep. i. c. 7, in. c i, 18, 72). 

147. Lup. Bebenb. c. 12 and 17. Similarly Ockham, Dial. in. The 

tr. 2, 1. I, c. 30: 'imperium Rom.' and 'dominium temporalium... j^o^g\°j 
principalissime spectat ad totam communitatem universalium morta- the Roman 
lium.' See also Dante, in. c. 16. ^^°P'=- 

148. Joh. Paris, c. 16 : acclamante populo, cuius est se subicere The 
cui vult sine alterius praeiudicio. Marsil. Pat. Def. pac. 11. c. 30 : the ^^^P'*'* 

10 — 2 



[48 Political Theories of the Middle Age. 



Part in the Pope acted, if at all, as the delegate of the legislator Romanus [i.e. 

Transla- jj^o^^n people]. See also the changes made by Marsilius in 

EmpL. ^ Landulfs De transl. imp. c. 8, 9, 10, 12. Ockham, Octo q. 11. c. 9, 

IV. c. 5 and 8 : auctoritate populi Romani, with the Pope as a part or 

mandatory or counsellor; Dial. in. tr. 2, 1. i, c. 20 : the Pope acted 

auctoritate et vice Romanorum...transferentibus consensit. Theod. a 

Niem, pp. 788 — 792. Aen. Sylv. c. 9: concurrente summi pontificis 

consensu. 

The 149. Lup. Bebenb. c. 12, p. 385; comp. c i — 4 and 8. Ockham, 

Roman jjj^j j,j^ jj. g, 1. i, c. 29 — 30, raises other doubts. Could the then 

ind the fopulus Romanus surrender the imperium to the prejudice of the 

Transla- p^p^lus sequensl Could the whole universitas mortalium make the 

txa-nsitx invitis Romanist To the last question the answer is Yes, 

if there were culpa on the part of the Romans, or other reasonable 

cause. 

Right of 150. Lup. Bebenb. c. 5. Ockham, Octo q. 11. c. 14, and Dial. 

the People jjj_ ^^ ^^ i_ j^ c. 22 : only by authorization of the Romani or the 

Vacancy Electors can the Pope claim any right in this matter. Ant. Ros. r. 

°f*? c. 64: the populus Romanus demises the imperial power as an 

offidum publicum; on the Kaiser's death this reverts to Xh& populus. 
The Right 151. See the citations in Note 138. Mars. Pat. i. c. 9 and 15. 
to choose iM-p. Bebenb. c. 5: secundum ius gentium... quilibet populus potest 
sibi regem eligere; c. 15: election or appointment by the Kaiser 
is, according to the common law, the only title whereby 2, principatus 
or regnum can be acquired. Ockham, Dial. in. tr. 2, 1. 3, c. 5 — 6 : 
if once a departure has been made from the Omnia communia of pure 
Natural law, we have as a principle of the now modified Natural Law 
' quod omnes quibus est praeficiendus aliquis habeant ius eligendi 
praeficiendum, nisi cedant iuri suo vel superior eis ordinet contra- 
rium.' Nic. Cus. in. c. 4 : populus Romanus habet potestatem 
eligendi inperatorem per ipsum ius divinum et naturale ; for, accord- 
ing to God's very own will, all lordship, and in particular that of 
Kings and Kaisers, arises ' per viam voluntariae subiectionis et con- 
sensus.' Ant Ros. I. c. 69. 
Consen- 152. Mars. Pat. i. c. 9. Eng. Volk. De ortu, c 10. Lup. 

of H?re?™ Bebenb. c. 15, p. 398. Ockham, Octo q. v. c. 6. K. Summenhard, 
ditary De contr. tr. I. q. 11: an hereditary kingship arises if those who first 
Kmgship. consented gave consent /w se et suis, an elective kingship if they only 
consented pro se, so that ' eo sublato, libere possunt se alteri sub- 
mittere quem elegerint.' Custom, ordinance proceeding from a higher 
power, and conquest are mentioned as other titles to hereditary rule. 
153. Thorn. Aq. Comm. ad Polit. pp. 495 and 501. Aegid. Col. 



Notes. 149 

in. 2, c. 5. Mars. Pat. i. c. i6. Bart. De reg. civ. nr. 23. Nic. SH*^''^^. 
Cus. III. praef. See also Miles in Somn. Virid. i. c. 187. is prefer- 

154. Otto Fris. Gesta, 11. c. i. Lup. Bebenb. c. 5. Ockham, ^b'«- 
Octo q. IV. c. S and 9, viii. c. 3. Baldus, 1. 5, Dig. i. i, nr. 11—15. Empire 
Nic. Cus. III. 0. 4. According to Lupoid, the exerdtus, which Elective, 
'repraesentabat totum populum Romanorum imperio subiectum,' 

used to make the election ; afterwards it was made by the People 
itself; then by the Emperor who chose a successor ; finally by the 
Prince Electors. 

155. Mars. Pat. 11. 26 (concessio populi is the basis) and iii. Theory 
concl. 9 and 10. Lup. Bebenb. c. 5 and 12: when the Karolings prin^e 
had died out, the princes and nobles of the Franks, Alamans, Bava- Electors, 
rians and Saxons 'who represented the whole Folk of Germany' 

made the choice ; then Otto III. ' by the express or at any rate the 
tacit consent ' of the princes and people established the Kurfursten 
(Prince Electors) ; and this was legitimate, for by the ius gentium 
every universitas may choose a king, and, in accordance with a 
general custom, may also confer upon him imperial rights, and more- 
over may delegate for ever to committees the right to make equally 
valid elections. Ockham, Octo q. viii. c. 3. Nic. Cus. in. c. 4 : the 
Electors were instituted in the time of Henry IL by the common 
consent of all the Germans and of all others who were subject to the 
Empire, and therefore ' radicalem vim habent ab ipso omnium con- 
sensu qui sibi naturali iure imperatorem constituere poterant.' Ant 
Ros. I. c. 48 : the ' collegium universale fidelium, et sic populus 
Romanus,' instituted the Electors. 

156. Ockham, Dial. ni. tr. 2, 1. 1, c 30 : what the People has The Pope 
defado conveyed to the Pope is knowable only by one who has seen p^p^j^ 
all the papal charters, registers and authentic documents; but in Delegate, 
principle the People might have transferred to the Pope power to 
constitute the Electoral College or even directly to make the election. 

Nic. Cus. III. c. 4 holds that it was merely as a subject of the 
Empire (for in temporals the Church is subject) that the Pope gave 
his consent, whereas the virtue {vigor) of the act flowed not ' ex suo 
sed ex communi omnium et ipsius et aliorum consensu.' — On the 
other hand, according to Lupoid v. Bebenburg, c. 12, an authoriza- 
tion by the Church was requisite in order that the choice made by 
the Prince Electors might give a claim to imperial coronation and to 
imperial rights outside the realm of Charles the Great. 

157. Mars. Pat. 11. c. 26. Ockham, Octo q. viii. c. i — 8, and Election, 
IV. c. 8—9; Dial. III. tr. 2, 1. 2, c. 29. Nic. Cus. iii. c. 4-— So also {["f;^^""- 
Bebenburg, c. 5 — 6, but once more with an exception of imperial confers the 



150 Political Theories of the Middle Age. 

Imperial rights beyond the limits of the ' immediate ' Reich. Ockham justly 

'^ '^' urges that Bebenburg's own argument requires that the Electing 

Princes should represent the World-Folk, and not merely the folk 

of Charles the Great's lands. 

LexRegia: 158. Accursius in Gl. upon 1. 9, Dig. i, 3, v. non ambigitur, 

vocable decides in favour of this view, while the Gl. upon 1. 11, Cod. i, 14, 

Convey- v. solus imperator mentions it but does not decide. So also Gl. upon 

ance. j_ pg^(J_ 26, v. an imperatorem (imperator maior populo). Hostiensis, 

De const. Bartolus, 1. 11, Cod. r, 14, nr. 3 — 4: omnis potestas est 

abdicata ab eis. Baldus, 1. 8, Dig. i, 3, nr. 5 — 11, says that the /(?/>«- 

lus Romanus cannot depose the Emperor and is not imperatori similis; 

the translatio was an alienatio pleno iure; otherwise the Kaiser would 

be, not dominus, but commissarius populi. So Baldus in I. Feud. 26, 

nr. 15 and 11. Feud. 53 § i (princeps maior populo); 1. 8, Dig. i, 14, 

nr. I — 3, and 1. 1 1, eod. nr. 6 : the populus can no longer make 

laws. Angel. Aret. § 6, i. I, 2, nr. 5—6. Joh. de Platea, Inst, i, 

2, nr. 51. Marcus, Dec. i. q. 187. 

LexRegia: 159. See the counter opinions in the Glosses cited in the last 

cableDele- "°'^^- ^'- "'^ '• ^> ^^S- ^^ ^- I^- ^- Hi^ora \ the protectio of the res 
gation. communes omnium is ascribed to the Roman people : Baldus substi- 
tutes Caesaris for pop. Rom. Also Cinus, 1. 1 2, Cod. i, 14 : but he 
confesses that at the present day statutes made by the Roman people 
would find little observance outside the walls of Rome. Ockham, 
Octo q. IV. c. 8. Christof. Parcus § 6, Inst, i, 2, nr. 4 (with elaborate 
proof). Zabar. c. 34 § verum, X. i, 6, nr. 8. Paul. Castr. 1. 8, Dig. 
I) 3, nr. 4 — 6, and 1. i, Dig. i, 4, nr. 4: he holds that there was a 
concessio of the usus, not a translatio of the substantia, but since 
Christ's advent the Church has taken the place of the People. 

Absolute 160. See e.g. the speech of the Abp of Milan to Frederick I. in Ott. 

Monarchy ^ , ^ 

and the ins. IV. c. 4, and the letter of Frederick II. in Pet. de Vin. ep. v. c. 135. 
p^o'°e*^ 161. Oldradus and, following him, Baldus, Prooem. Feud. nr. 
Nullity of 32. and II. Feud. 26 § 4 in generali, nr. 34. Pious a Monte Pico, 
Monarch's I. Feud. 7, nr. 7. Decius, Cons. 564, nr. 9 — 10. Franc. Curt. jun. 
they tend ^°°^- ^74. nr. 17.— Therefore to support the Donation of Constan- 
to impair tine, an approval by Senate and People was supposed. Baldus, 
menuf"^^' Prooem. Dig. nr. 44—45. and 11. Feud. 26 § 4, nr. 3 ; Aug. Trium- 
Rights. phus, II. q. 43> a- 3 ; Ant. Rosellus, i. c. 69 ; Curtius, 1. c. nr. 18. 
^fAas ^^^' ^"P- ^^'^^'^^- •=• ^'P- 367. andc. i2,p. 381, butesp. c. 14, 

subjecting PP- 395 — 7 = since these concessions and confessions were made without 
J^^^mpire the consent of the Prince Electors and the People of the realm and 
Church, empire, the said Princes and other representatives of the People can 
contradict them, and this contradiction is to be received; so the 



Notes. 151 

subdiii may always raise objection if a dominus would subject himself 
and his land to another dominus ; for according to the ius gentium, 
civile et canonicum whatever would prejudice a community ' debet ab 
omnibus approbari.' Similarly, Ockham, Dial. iii. tr. 2, 1. i, c. 30 : 
a division or diminution of the Empire would be valid ' non absque 
consensu expresso vel tacito totius universitatis mortalium.' 

163. Seethe Commentaries on 1. 8, Cod. i, 14; also Baldus, 
II. Feud. 26 § I, nr. 13. 

164. See e.g. Pet. de Vin. ep. i. c. 3, p. 105. Lup. Bebenb. The Right 
c. 17, p. 406 — 7 : even were rex maior fopulo, the people must have *« depose 
a right to depose him in a case of necessity ; ' necessitas enim a case of 
legem non habet.' Ockham, Octo q. 11. c. 7, vi. c. 2, in. c. 3 ; the Necessity. 
Kaiser, albeit ius a pofulo habet, stands above the People, the King 

above the Realm, the General of an Order above all the friars : still 
in case of necessity the community may depose him. Anton. Ros. 
HI. c. 16 : although the Kaiser stands as caput above the Assembly of 
the Reich and is judge in his own cause, an exception must be 
admitted if he is accused before that Assembly as 'tyrannus et 
scandalizans universale bonum imperii saecularis.' Comp. ib. a 21 
and 22, and above, Note 130. — On the other hand, already in the 
time of Henry IV. the Anti-Gregorian cardinals opine that, though 
the people can make a king, the will of the people, when once it is 
uttered, becomes a necessitas : see Sudendorf, Registr. 11. 41. So 
also Baldus (Note 158); but comp. his Cons. v. c. 325 — 6. 

165. Thomas of Aquino attributes sovereignty sometimes to The Mixed 
the People, sometimes to the Prince, regard being had to the different ^°^f^ 
constitutions of different States. Summa Theol. 11. i, q. 90, a. 3 : 
ordinare aliquid in bonum commune est vel totius multitudinis vel 
alicuius gerentis vicem totius multitudinis; et ideo condere legem 

vel pertinet ad totam multitudinem, vel pertinet ad personam publi- 
cam, quae totius multitudinis curam habet. So also, q. 97, a. 3. In 
this matter later writers follow him : e.g. Joh. Friburg. 11. t. 5, q. 209, 
and K. Summenhard, q. 1 1 : potestas politica exists ' duplici modo, 
uno modo in uno rege, alio in una communitate.' But as to the best 
constitution, Aquinas declares in favour of the mixed constitution 
which (so it is imagined) prevailed among the Jews. Summa Theol. 
II I, q. 95, a. 4, and q. 105, a. i : 'Unde optima ordinatio princi- 
pum est in aliqua civitate vel regno in quo unus praeficitur secundum 
virtutem qui omnibus praesit ; et sub ipso sunt aliqui participantes 
secundum virtutem; et tamen talis principatus ad omnes pertinet, 
turn quia ex omnibus eligi possunt, tum quia etiam ab omnibus 
eliguntur: talis enim est omnis politia bene commixta ex regno in 



152 Political Theories of the Middle Age. 

quantum unus praeest, ex aristocratia in quantum multi principantur 
secundum virtutem, et ex democratia, id est, potestate populi, in 
quantum ex popularibus possunt eligi principes et ad populum 
pertinet electio principum.' In all cases he demands that Monarchy 
be subjected to limitations so that it may not degenerate into 
Tyranny : De reg. princ. i. c. 6. John of Paris, c. 20, p. 202, prefers 
to a pure Monarchy one mixed with Aristocracy and Democracy. 
So d'Ailly, De pot. eccl. 11. c. i, and Gerson, De pot. eccl. cons. 13. 
Eng. of Volkersdorf also (i. c. 14 — 16) portrays the advantages of 
mixed constitutions. Jason, 1. 5, Cod. i, 2, lect. 2, nr. 10 — 13, 
declares it to be a general maxim in Church and State, that, if there 
be ardua negotia concerned, the Head is bound to obtain the consent 
of a conciliar assembly. Almain, Comm. ad Occam, q. i, c. 5 and 
IS, holds it to be compatible with the nature of a Monarchy that in 
State and Church respectively the congregatio nobilium or the Council 
is entitled to impose limits on the regal or papal power and to judge 
and depose the king or, as the case may be, the pope ; but then it is 
true that he elsewhere (Tract, de auct eccl. c. i, Gerson, Op. 11. 
p. 977 ff.) declares that the Prince is above all individuals, but not 
above the community. John Mair, Disput a. 1518 (Gerson, 11. 
p. 1131 ff.) supposes two highest powers, that of the folk being the 
more unUmited. 

166. See above. Note 159. Lup. Bebenb. c. 12 and 17. 

Ockham, Octo q. iv. 8. 

Justice to 167. Mars. Pat. I. c. 15 and 18; 11. c. 26 and 30. Lup. 

upon°the bebenb. c. 17, p. 406. Ockham, Octo q. 11. c. 8 (correctio impera- 

Ruler. toris spectat ad Romanos). Miles in Somn. Virid. i. 141 : if a King 

imposes unjust taxes, denies justice, fails to defend the country, or 

otherwise neglects his duty, the People may depose him and choose 

another Ruler, and so the People of a part of the realm, if this part 

only has suffered neglect, may appoint a separate Ruler. Joh. 

Wiclif, art. 17: populares possunt ad suum arbitrium dominos 

delinquentes corrigere. Nicol. Cus. in. c. 4.— Already in the course 

of the Investiture Quarrel, Manegold of Lautenbach deduced the 

right of deposition in case of breach of contract by the Ruler. 

Innoc. c. I, X. i, 10, nr. i — 2 concedes a right of deposition only in 
the case of elective kings. 

Itio^or' ^^^' ^^P^*=^^lly ii* relation to the deposition of the last Merovings 

Kings. ^"^^ tlie exaltation of Pipin, it is asserted at length that ' non deposuit 

papa, sed deponendum consuluit et depositioni consensit,' 'non 

substituit sed substituendum consuluit et substituentibus consensit,' 

•a iuramento absolvit, i.e., absolutos declaravit'; and reference is 



Notes. 1 53 

made to Huguccio and Glos. ord. on c. alius, C. 15, q. 6. Joh. Paris. 
c. 15. Mars. Pat. De transl. c. 6. Lup. Bebenb. c. 12, pp. 386 — 9: 
the Pope merely declared a dubium iuris, the Franks deposed and 
instituted. Ockham, Octo q. ii. c. 8 ; viii. c. i and 5 \ Dial. in. tr. 2, 
1. I, c 18: so too Innocents III. and IV. acted auctoritate Roman- 
orum, unless indeed their doings were usurpatory. Somn. Virid. 
I. c. 72 — 73. Quaestio in utramque p. 106, ad 15 — 16. Nic. Cus. in. 
c. 4 : the Pope acted as a member of the universitas. 

169. Lup. Bebenb. c. 12, p. 385, and c. 17, p. 406. 

170. Marsil. Pat. i. c. 7 — 8, 12 — 13, 15, 18, 11. c. 30, iii. concl. 6. 

171. Nicol. Cus. III. c. 4 and 41, and 11. c. 12 — 13. The pro- The 
posals made by Cusanus for the reformation of the Empire are S"^"!^*^/* °' 
connected with these theories, and in a very remarkable fashion blend of Cues. 
the forms of the medieval Land-Peace-Associations with the ideas of 
Nature Right, in. c. 25 — 40. The Emperor continues to be the 
monarchical Head of the Empire and is to take the initiative (c. 32). 

A very complicated method is proposed for his election (c. 36 — 37). 
The power of making laws for the Empire is wielded by an annually 
assembled Imperial Diet {Reichstag) which consists of Prince-Electors, 
Judges, Councillors and Deputies of Towns, and represents the 
whole People (c. 35). Then below this stand annual Provincial 
Assemblies of the three Estates (Clergy, Nobles and People) which 
regulate the special affairs of the provinces, and depute standing 
committees (provincial courts) with a strong executive power (c. 33). 
Further and detailed reforms of the imperial army (c. 39), of the 
finance and justice of the Empire, of the laws concerning the Land 
Peace (c. 34), of ecclesiastical privileges (c. 40) and so forth are 
proposed. As in the Empire, so generally in all territories the kings 
and princes are to have by their sides an aristocratic consilium guoti- 
dianum and an electing, legislating and deciding consilium generale 
(c. 12). — Analogous reforms in the Church are proposed; 11. c. 22 — 33. 

172. See in particular the transactions of the French Estates of Popular 
1484, and on them Bezold, Hist. Zeitschr. vol. 36 (1876) 361 ff., and ^°\Xiy in 
Baudrillart, Bodin et son temps, p. 10 j the remarks of Philippe de France. 
Comynes in Baudrillart, p. 1 1 flf. ; the doctrine of Jacob. Almain, 
Expos, ad Occam, q. i. c. 5 and 15; Tract, de auctor. eccl. c. i 
(Gerson, Op. ii. p. 977 ff.); De dominio natural! etc. (ib. 964). 

173. See the passages from the Canonists collected by v. Schulte, Pf-pal 
Die Stellung der Koncilien, p. 253 ff. Thom. Aq. Opusc. cont. err. General" 
Graec. 11. c. 32—38. Innoc. c. 23, X. de V. S. nr. 3. Dur. Spec. Councils. 
I. I de leg. § 5, nr. 10. Aegid. Rom. De pot. eccl. i. c. 2. Aug. 
Triumph, i. q. 6, a. 6. Alv. Pel. i. a, 6 (printed in Hubler, Konst. 



[54 Political Theories of the Middle Age. 



Ref. p. 361) and 17. Brief of Pius II. and Reply of Laelius in Gold. 
II. p. 1591 and 1595. Turrecremata, Summa de eccl. 11. c. 54 and 
65; III. c. 28, 32, 44, 47, SI, 55. Petrus de Monte in Tr. U. J. 
XIII. I, p. 144 ff- 
Papal 174- If Aug. Triumphus, I. q. 3, a. 7—9, says that the electing 

Elections : college is not mains papa, since it is merely God's instrument for the 
Mntative designatio personae, makes the election papae audoritate, and can 
Character confer no authority upon the pope, still in default of the college he 
Cardinals, attributes the right of election to the Concilium Generale, and con- 
nects this attribution with the doctrine that, during the vacancy of 
the see, the collegium universalis ecclesiae represents the Church, may 
assemble of its own motion or at the emperor's call, and, to this 
extent, possesses a 'potential superiority {maioritas potentialis)' yihich 
maybe contrasted with the 'actual superiority {maioritas actualis)' 
of the pope. See i. q. 3, a. 2, q. 4, a. i — 8, q. 6, a. 6. However, 
during the vacancy the properly monarchical power, so far as its 
substance is concerned, lives on merely in Christ, and, so far as its 
use is concerned, lies dormant, for the Cardinals — here a departure 
from older theory — can at the most exercise the papal jurisdiction 'in 
minimis et quibusdam.' See also Alv. Pel. i. a. 20, Gl. on CI. 2 de el. 

I, 3, v. non consonam; Hinschius, Kirchenrecht, § 39. 

175. See V. Schulte, Die Stellung der Koncilien, pp. 192 — 4 

and p. 253 ff. 
Deposition 176. See c. 13, C. 2, q. 7, and c 6, D. 40; also in v. Schulte, 
^^\- 1 op. cit., the opinions of Gratian, Rufinus, Stephanus Tomacensis, 
Pope. Simon de Bisignano, Joh. Faventinus, Summa Coloniensis, Summa 

Parisiensis, Summa Lipsiensis, Huguccio, Bern. Papiensis, Joh. Teu- 

tonicus, Archidiaconus, Turrecremata, Goffr. Tranensis, Hostiensis, 

Joh. Andreae, Joh. de Imola, Joh. de Anania. Moreover, Gl. ord. 

on c. 9, C. 24, q. I, V. novitatibus ; Innoc. IV. on c. 23, X. de verb. 

sig. 5, 40, nr. 2 — 3 ; Host, de accus. nr. 7 ; Joh. de Anan. c. 29, 

X. 3, 5, nr. 9 ff.; Petrus a Monte, f. 148 ff. 
The 177. This is suggested already by Joh.Teutonicus (1. c. nr. 310, 

heretical p_ 265), and is urged in particular by Aug. Triumphus, i. q. 5. a. i, 
deposed 2, 6 and q. 6, a. 6 (see also q. i, a. i, 3, q. 5, a. 3 — 4, q. 7, a. 1—4, 
ipso facto. q_ g^ jj_ q g g^j^^j jj_ ^^ — ^g^^ g^jj^j Alvarius Pelagius, i. a. 4 — 6 and 34, 

II. a. 10. Also by the Clerk in the Somnium Virid. 11. c 161 
Ockham discusses the matter at length: Octo q. iii. c. 8, viii. c. 
5 — 6, Dial. I. 6, c. 66 — 82. 

In Matters 178. Already Huguccio (v. Schulte, p. 261) is of opinion that 

of Faith tjjg heretical pope is ' minor quolibet catholico.' See the statement 

the Pope ^ 

is below of this view in Ockham, Dial. i. 5, c. 27, and I. 6, c. 12 — 13, 57, 64: 



Notes. 155 

in matters of faith the Council is 'mains papa' because it 'tenet the 
vicem ecclesiae universalis.' Michael de Cesena, ep. a. 133 1 ^°""=''- 
(Goldast, II. p. 1237): in his quae ad fidem catholicam pertinent 
papa subest concilio. Henr. de Langenstein, Cons. pac. a. 1381, 
c. 13 and 15 in Gerson, 11. p. 824, 832. 

179. Thus already Huguccio and others; for crimina noforia "Deposition 
comp. Ockham, Octo q. i. c. 17, 11. c. 7, in. c. 8, viii. c. 5— Sj^^h^^. 
Dial. I. 6, c. 86. Letter of the University of Paris, an. 1394 matical or 
(Schwab, pp. 131— 2, Hubler, p. 362); for schism, Matth. de pope°°"' 
Cracovia (Hiibler, p. 366 — 7). Pierre Plaoul, a. 1398 (Schwab, 

p. 147). Zabar., De schism, p. 697. 

180. See above, Note 134. Henr. de Langenstein, L c, c. 15. Rejection 
Simon Cramaud, Pierre Plaoul and other Galileans in Schwab, 146 flf. °^ cafe°of 
and Hiibler, 368 ff. Opinion of the University of Bologna in 1409, Necessity. 
in Martene, Ampl. Coll. viii. 894. A practical application of this 
doctrine in the French Subtraction of Obedience (Schwab, p. 146 fif.) 

and Declaration of Neutrality (ib. 2 1 1). 

181. Joh. Paris, c. 6, pp. 155 — 8, c. 14, p. 182, c. 21, p. 208, 
c 25, p. 215 — 224. 

182. Mars. Pat. 11. c. 15 — 22, and in. concl. 32 and 41. All Marsilius 
other powers wielded by the popes have been usurped. The Council °"^ °^^ 
has authority, not only in matter of faith (11. c. 18, 20, in. c. i and Council. 
2), but also in matters of excommunication, punishment, legislation, 
raising tithes, licensing schools, canonization, establishment of 
festivals etc. (ii. c. 7, 21, in. c. 5, 34 — 6). 

183. See in Ockham, Dial. i. c. 5, c. 14 — 19, and in. tr. i, 1. 4, Divine 
the opinion that the papacy rests upon human ordinance; in. tr. i, 1. 2, ^'^p' °*^j 
c. 2, 12 — 14, 16 — 17 and 25, the reasons which can be urged against Primacy 
there being any single, human, monarchical head of the Church; in. <:°"'«sted. 
tr. I, 1. I, c. I, the question how wide a power God has committed 

to the Pope. See also the references to such opinions in Petr. 
AUiac. (Gerson, Op. i. p. 662 ff.), Gerson (ib. 11. p. 88, where it is 
said to be a common opinion that the pope is not iure divino Head 
of the Church) and Joh. Breviscoxa, Tract, de fide (ib. i. p. 808, 
esp. 878 ff.). The divinity of the primacy is decisively disputed by 
Nilus, arch. Thessalon., De primatu (Gold. i. pp. 30 — 39), Randuf, 
De mod. un., Wyclif, Hus, and so forth. — The auctoritas condliorum 
is often mentioned by the older canonists as one of the forces which 
had constituted the primacy: e.g. Huguccio, 1. c. p. 266. So d'Ailly 
(Gers. Op. 11. p. 905) seems to favour the middle opinion : licet 
principaliter Rom. eccl. principatum habuerit a Domino, tamen secun- 
dario a conciho. In the same spirit, Gerson (11. p. 239 ff.) distin- 



156 Political Theories of the Middle Age. 

guishes those powers of the papacy that were divinely bestowed from 
those that have been acquired under human law. 
Abolition 184. Ockham, Dial. iii. tr. i, 1. 2, c. 20 — 27, treats the questions 
of Papal Tyhether the Community of the Faithful possesses and might ex- 
suggested, pediently use a power of changing the regal form of ecclesiastical 
government into an aristocratical, and vice versa. Also (c. 28) from the 
principle of autonomy (quaelibet ecclesia et quilibet populus Christi- 
anus propria autoritate ius proprium statuere pro sua utilitate potest) 
he deduces the right of every people to give itself a separate eccle- 
siastical head, in case the Pope be heretical, the papal see be long 
vacant, or access to Rome be impossible. 

185. Ockham, Dial. in. tr. 2, 1. 3, c. 4 — 13. And then to the 
like effect Henr. de Langenstein, Cons. pac. c. 14 and 15. 

186. Ockham, Octo q. i. c. 15, in. c. 9; Dial. in. tr. i, 1. i, c. 1 
(where the fifth of the suggested opinions seems to be his own). 

The 187. Ockham, Octo q. i. c. 17, in. c. 8; Dial. i. 5, c. 27; i. 6, 

SayTudge <=■ ^2— 13, 57. 64, 69—72, 86. See Nilus, as in Note 183. Anony- 

the Pope, mus De aetat. eccl. c. 6, p. 28 : nemo primam sedem iudicare debet, 

sed hoc pertinet ad dominam et reginam sponsam Christi, cuius 

servus et dispensator est papa, quam universales sjmodi repraesentant. 

Somn. Virid. i. c 161. Henr. de Langenstein, Cons, pac c. 15. 

Right 188. Ockham, Dial. i. 6, c. 84: this is but one instance of the 

rh*^h general right of every autonomous populus, of every communitas, of 

assemble every corpus, to assemble itself, or to constitute an assembly of 

and to deputies : potest aliquos eligere qui vicem gerant totius communi- 

a Council, tatis aut corporis absque alterius autoritate. So the Universal Church, 

when the holy see is vacant, might per se convenire were her size 

small enough, and, as it is, may assemble 'per aliquos electos a 

diversis partibus ecclesiae.' The impulse to such an assemblage 

may come from the temporal powers or from all the laity, in case the 

organs which in the first instance are entitled to give it, the prelates 

and divines, make default. Comp. Langenstein, 1. c. c. 15 : Conrad 

de Gelnhausen, Tr. de cong. concil. (Martene, Thesaur. 11. p. 1200). 

Theory 189. Zabarella, De schism, p. 703, and upon c. 6, X. i, 6, nr. 

of the 16: id quod dicitur quod papa habet plenitudinem potestatis, debet 

Conciliar ..... , .... _ . 

Party. intelligi non solus sed tanquam caput universitatis : ita quod ipsa 
potestas est in ipsa universitate tanquam in fundamento, sed in ipso 
tanquam ministro, per quem haec potestas explicatur, Petr. Alliac 
de pot. eccl. (Gerson, Op. n. p. 949 ff.) : the plenitude of ecclesias- 
tical power is 'in papa tanquam in subiecto ipsam recipiente et 
ministerialiter exercente,...in universali ecclesia tanquam in obiecto 
ipsam causaliter et finaliter continente,...in general! concilio tanquam 



Notes. 



157 



in exemplo ipsam repraesentante et regulariter dirigente.' For Gerson 
see the next note. Theod. a Niem, De schismate. Randuf, De 
mod. un. especially c. 2, goes furthest : the Universal Church has 
the power of the keys from God, the Roman Church has the exercise 
thereof only in so far as this has been conceded to her by the 
Universal Church. 

190. See last Note. The whereabouts of ecclesiastical power Gerson's 
is more thoroughly discussed by Gerson than by others : Gers, 11. '^^^°^"l- 
225 fr.; Gold. II. 1384 flf. This power bestowed by Christ's mandate 

must in all its elements be regarded from three points of view (c. 6). 
• In se formaliter et absolute' (i.e. regarded abstractedly and according 
to its simple essence) it is unchangeably and indestructibly in the 
Church, thereby being meant the complete system of all essential 
oflSces, among which offices the primacy is only one, so that it is a 
part within the whole (c. 7), ' Respective et quodammodo materia- 
liter' (i.e. regard being had to the 'subject' in which this power 
resides) it is in the office-holders for the time being and to this extent 
also in the Pope, but, if need be, can be changed or taken away 
(c. 8). ' Quoad exercitium et usum ' it is, in a yet more changeable 
and more limited fashion, allotted among the various organs accord- 
ing to the Church's constitution (c. 9). In the first of these three 
senses the power comes directly from Christ ; in the second and third 
senses ' mediante homine.' — ^Then as to the division of power among 
ecclesiastical organs, the ' plenitudo ' is both in the Pope and the 
'ecclesia synodaliter congregata.' It is in the latter more aboriginally 
and more fully in four respects (ratione indeviabilitatis, extensionis, 
regulationis, generalis extensionis). Indeed it is in the Pope ' forma- 
liter et monarchice' ; but it is in the Church as in its final cause (in 
ecclesia ut in fine) and as in its ordaining, regulating and supple- 
menting wielder (ordinative, regulative et suppletive). It therefore 
is exercised by the Pope, while the Council ' usum et applicationem 
regulat,' and 'mortuo vel eiecto papa supplet' (c. 10 — 11 ; also ^Con- 
cordia quod plenitudo eccl. pot. sit in summo pontifice et in ecclesia,' 
Op. II. p. 259 and Goldast, 11. p. 1405). In its latitudo, on the other 
hand, the ecclesiastical power is bestowed on all offices and therefore 
m the highest degree on the Pope, but belongs to him only in so far 
as respect is paid to the subordinate but independent power of other 
offices and to the all-embracing power of the Council. (Hiibler's 
account of Gerson's trichotomy (p. 385 if.) is not quite accurate.) 

191. Zabarella, De schism, pp. 703, 709, and c. 6, X. i, 6, nr. Practical 
15—20 : 'ipsa universitas totius ecclesiae ' is to cooperate in arduous ^^^^^ 
matters, to decide on good or bad administration, to accuse, to Council. 



158 Political Theories of the Middle Age. 



Power 
of the 
Council to 
assemble. 



Power 
of the 
Council 
during a 
Vacancy 
of the 
Holy See. 
The 

Cardinals 
are Repre- 
sentatives 
of the 
Whole 
Church. 
An inde- 
pendent 
position 
assigned 
to the 
Cardinals. 
Mixed 
Govern- 
ment 
in the 
Church. 



depose, and can never validly alienate these rights to the Pope, 
Gerson, De auferibilitate papae (Op. 11. p. 209 and Gold. 11. p. 141 1) 
cons. 10 and 12 — 19, De unitate eccl. (Op. 11. 113), De pot. eccl. 
c. II (comp. also Op. 11. p. 275): the Church or the General Council 
representing the Church can repress abuses of power, can direct and 
moderate; can depose the Pope 'auctoritative, iudicialiter et iuridice,' 
not merely 'conciliative aut dictative vel denuntiative'; nay, can 
imprison him and put him to death: Aristotle teaches that every 
coinmunitas libera has a like inalienable right against its princeps. 
See also Randuf, c. 5 and 9 ; Pierre du Mont de St Michel in Hiibler, 
p. 380, and the doings at Constance, ib. loi — 2 and 262. 

192. Petr. Alliac. Propos. util. (Gerson, Op. 11. p. 112): a right 
of the Council to assemble of its own accord is deduced both from 
the power given by Christ and (after Ockham's fashion) from the 
natural right of every corpus civile seu civilis communitas vel politia 
rite ordinata to assemble itself for the preservation of its unity. 
(Somewhat otherwise at an earlier date, ib. i. pp. 661 — 2.) Randuf, 
c. 3 (p. 164). Less unconditionally, Gerson, Propos. (Op. 11. p. 123), 
De un. eccl. (ib. 113), De aufer. pap. (c. 11, ib. 211) and De pot. 
eccl. (ib. 249). Zabarella, De schism, pp. 689 — 694, attributes the 
right of summons to the Cardinals, and, failing them, to the Emperor 
'loco ipsorum populorum,' since he represents the whole Christian 
people, 'cum in eum translata sit iurisdictio et potestas universi 
orbis ' : in the last resort, however, the Council may assemble itself 
according to the rules of Corporation Law. 

193. Gerson, De pot. eccl. c. 11. Zabar. De schism, pp. 688 — 9: 
with application to the case of a schism, for then the holy see is quasi 
vacans. Domin. Gem. Cons. 65, nr. 7. 

194. Octo conclusiones per plures doctores in Italiae part, 
approb. ann. 1409 (Gers. Op. 11. p. no): veri cardinales in electione 
papae vices gerunt universalis ecclesiae Christianae. Zabarella, c. 6, 
X. I, 6, nr. 9, and Panorm. eod. c. nr. 15. According to Gerson 
(Op. II. pp. 123, 293) the Council might institute another mode of 
election : according to Randuf (c. 9) it might itself elect. 

195. Octo concl. 1. c. Gerson, De pot. eccl. c. 7 and 11. Petr. 
Alliac. De pot. eccl. 11. c. 1. Hiibler, p. 74, and the Reform Decrees, 
ib. 129 and 218. 

196. Gerson, De pot. eccl. c. 13 : the organization of ecclesi- 
astical power should share in the harmony and 'pulchra ordinis 
varietas' oiiura, leges, iurisdictiones and dominia : therefore its politia 
must be compounded of the three good polities of Aristotle : the 
three degenerate forms also are possible in the Church. Pet. AUiaa 



Notes. 1 59 

De pot. eccl. ii. c. i (ii. p. 946) : the Church must have the best of 
constitutions, and therefore ' regimen regium, non purum, sed mixtum 
cum aristocratia et democratia.' 

197. Zabar. De schism, pp. 703, 709. Octo concl. 1. c. : The 
delegated nature of all other powers. Pierre du Mont de St Michel, abOTTthe 
ann. 1406, in Hiibler, p. 380. Gerson, De unit. eccl. (11. p. 113); Pope- 
Tract, quomodo et an liceat etc. (ib. 303 and Gold. 11. 1515); De 

pot. eccl, 7 and 11 : the Pope is only a membrum of the corpus 
ealesiae, and is as little above the Church as a part is above the 
whole ; much rather, if the General Council represents the Universal 
Church suflSciently and entirely, then of necessity it must include the 
papal power, whether there be a Pope, or whether he has died a 
natural or a civil death; but it will also include the power of the 
cardinals, bishops and priests. Randuf will allow to the Pope not a 
whit more power 'than is conceded to him by the Universal Church,' 
and only a power which is 'quasi instrumentalis et operativa seu execu- 
tiva ' (c. 2) ; the concilium is thoroughly ' supra papam,' and to it he 
owes obedience (c. 9) ; the Sovereignty of the Council is inalienable 
and all Canon Law to the contrary is invalid (c. 17; comp. c. 23). 
Add the famous decree of Session V. of the Synod of Constance, and 
Gerson, 11. p. 275 thereon. 

198. Gerson, De pot. eccl. : the ' congregatio totius universi- Gerson on 
talis hominum ' could, it is true, establish the Empire, but could not, ^^^ 
without Christ, have laid the foundation of the Church (c. 9) ; the of the 
Church is a system of offices, including the papacy, which were "P^y* 
instituted by Christ and are indestructible (c. 7 and 9) ; the papacy, 
though as a function it is subject to alteration and may be temporarily 
dispensed with (c. 8), is as an institution indestructible (c. 1 1). Comp, 

De auferib. pap. c. 8 and 20, where this is made the distinctive 
difference between the constitution of the Church and civil con- 
stitutions. See also Op. 11. pp. 130, 146, 529 — 30, and iv. p. 694, 

199. See Randuf, 1. c, c. 5. 

200. In the Concordantia Catholica. See also his De auctor. 
praes. in Diix, i. p. 475 ff. 

201. Gregory of Heimburg in his polemical writings touching Popular 
the strife about the bishopric of Brixen : as to which see Brockhaus, .^' 
Gregor v. Heimburg, pp. 149 — 259. [For this quarrel the English in the 
reader should refer to Creighton, Papacy, iii. 237 : Nicholas of Cusa Church, 
and Gregory of Heimburg were concerned in it and Aeneas Sylvius 

was the then Pope, Pius II.] According to Heimburg the Council 
and only the Council represents the eternal, constant, infallible 
Church, realizes the Church's unity in a democratic form, and is 



i6o Political Theories of the Middle Age. 



greater than the monarchical Head (Gold. ii. 1604 ff., 1615 ff., 
1626 fif.). Immediately from Christ it has power over the Pope in 
matters of faith, unity and reform, and is his superior. From the 
Pope lies an appeal to the Council, as in Rome an appeal lay from 
Senate to People (ib. 1583, 1589, 1591, 1595, 1627); and a papal 
prohibition of such an appeal is invalid (ib. 1591 and 1628). If no 
Council be sitting, the appeal is to a future Council, since once in 
every ten years the authority of the Church scattered throughout the 
world — an authority which lies dormant during the intervals — should 
become visible (ib. 1580 — 91). — Compare Almain, Expos, ad octo q. 
I. c. IS, and Tract, de auctor. eccl. et cona gen. (Gers. Op. 11. p. 
977 ffi) : the Church is a Limited Monarchy, in which the Council 
ratione indeviabilitatis stands above the Pope, sits in judgment on him, 
receives appeals from him, restrains him by laws, can depose him, 
and so forth. — Aeneas Sylvius, Comment, de gestis Basil, concilii 
libr. II. : the comparison to the relationship between King and 
People is consistently pursued. 
Canonists 202. Comp. Ludov. Rom., Panormitanus (e.g. upon c 2, X. i. 
Council. ^' "''• ^ • potestas ecclesiastica est in papa et in tota ecclesia, in papa 
ut in capite, in ecclesia ut in corpore ; c. 3, eod. nr. 2 —4 ; c. 6, eod. 
nr. 15 ; c. 17, X. r, 33, nr. 2), Decius (e.g. c. 4, X. i, 6, nr. i — 22; 
c. 5, eod. nr. 3; Cons. 151), Henr. de Bouhic (e.g. c 6, X. i, 6), 
Marcus (e.g. Dec. i. q. 935), and so forth. 
The 203. The Pope stands as Monarch {caput) above the Council : 

Anfodiis ^'^'- ^° ^°°'^ ^® ^^ prescribes anything against the Faith or the weal of 
de Rosel- the Church ■ or beyond his official competence, the Council stands 
above him, judges him, and receives appeals from him (11. c. 13 — 22, 
and III. c. 16 — 17). Although therefore he normally has the pleni- 
tude of power and his opinion has precedence over that of 'the 
whole body mystical,' still the judgment of the whole Council takes 
precedence ' in a matter of faith, or schism, or where the good of the 
universal Church is in question' (iii. c. 26 — 27), even if this good be 
but some secondary good; for example, if there be question as to the 
appointment of officers. When there is no pope or there are more 
popes than one or the pope is heretical, then the Council has all 
power (11. c. 24). The election of popes belongs to the Church 
universal which has committed it to the cardinals (i. c. 48). Nor- 
mally it is for the Pope to summon and authorize the Council 
(ill. c. I and 3) : but he is bound to summon it for every arduous 
affair of the whole Church or if he himself is to be called to judgment 
(ib. c. 2). If he makes default, then the Cardinals, the Emperor, or 
indeed any clerk or layman may call a Council, which then con- 



Notes. i6i 

stitutes itself of its own authority (ii. c. 4 and 24, ni. c. 3). Against 
a pope who has been condemned or who impedes or dissolves a 
Council which might depose him, there is a general right of resist- 
ance and renunciation (11. c. 23, 26 — 30, in. c. 4—6). To deal with 
•mixed' affairs 'mixed' councils, to which the Church should submit, 
are to be summoned by the joint action of .the spiritual and temporal 
powers (hi. c. 15 — 18 and 21 — 22). 

204. Turrecremata, De pot. pap. c. 38. So also Nicholas of Popular 
Cues (Op. 825—9) in his later days: for Plurality is evolved out of ty°dentd!" 
Unity, and the Body out of the Head. — After as well as before the 
reaction in favour of the Papacy, the papalists admit the superiority 

of the Council in ' a cause of faith or of schism ' (confentio de papatu 
and causa contra papam), but regard this as an exception. See, e.g., 
Card. Alexandr. c. 3, D. 21, c. i, D, 23, summa, and c. i, D. 15; 
Domin. Jacobatius Card. De consiliis, esp. iv. a. 7, nr. 29 — 31 and vi. 
a. 3, nr. 41 and 58 — 60, comp. with vi. a. 3, nr. 61 ; also Petrus de 
Monte and Turrecremata, in Schulte, Geschichte, 11. p. 319 and 327. 

205. As to the part assigned to delegates of Princes, Towns and Lay 
Universities, see Hiibler, p. 119, note 3, 120, note ■; ; Voiet, Enea ^^P'^." 

o ' scntEttivcs 

Sylvio, I. p. 102 ff. Gerson, De pot. eccl. (11. p. 250), allows the in the 
laity only consultative voices. Even Nic. Cus. would allow them a Councils, 
real voice only under certain conditions, but lets all parishioners take 
part in the parochial synods, and the laity are to cooperate in the 
election of parsons and bishops (11. c. 16, in. c. 8 — 24). 

206. Gerson, Propos. coram Anglicis, ann. 1409 (Op. 11. pp. 128 The 

— 130), De aufer. pap. (ib. 209 ff.), De pot. eccl. c. 7 and 9, Sermo in Ch".«:h an 
Op. II. p. 436 ff. So also Petr. AUiac. (ib. i. p. 666 ff. and 690) and rather 
Nic, Cus. (i. c, 7 — 10 and 11. c. 19) regard the Priesthood as the Jj"*" * 
essential and distinctive mark of the Church. As to Heinrich v. ship. 
Langenstein, see his biography by O. Hartwig, i. pp. 56 — 57. [Dr 
Gierke here contrasts an idea of the Church which is anstaltlich with 
one which is genossenschaftlich. Some learning of a technically legal 
kind is implied by the employment of these words, and it cannot be 
briefly explained in English. But we shall not go far wrong if we 
contrast the idea of the Church as ' a corporation aggregate,' congre- 
gatio fidelium, with that of the Church as a system (Jnbegriff) of 
personified offices, or (as we say in England) of 'corporations 
sole.'] 

207. So e.g. in Randuf, De mod. un. in Gerson, Op. 11. 
p. 161 ff. 

208. Ockham, Dial. i. 5, c. i — 35. So almost verbatim Petr. Fallibility 
AUiac. (Gers. Op. i. p. 661 ff.) who, however, does not draw infer- °^ ^^^'^5' 

M. II 



1 62 Political Theories of the Middle Age. 



Part of the 

Church. 

The Laity 
and the 
Election 
df Popes. 

The 

Emperor's 
part in 
Papal 
Elections, 
The 

Temporal 
Magistrate 
as Repre- 
sentative 
of the 
Laity. 
The 

Objectifi- 
cation of 
Office or 
Dignity. 



The 

Prelate as 
Repre- 
sentative 
of his 
Church. 



Is the 
Pope the 
Church? 



ences as to the active participation of the laity in the constitution of 
the Church. Comp. Randuf, c. 3. 

209. Ockham, Dial. in. tr. 2, 1. 3, c. 4 — 15 : refuting opinions 
which would attribute this right only to the Canons, or the Clergy, or 
the Emperor. 

210. Ockham, 1. c, c. 5, 7, 12 (vice omnium eligeret) : not as 
Emperor (c. 2, 3, 13), nor by the authority of the Pope (c. 5, 7). 
Comp. Octo q. IV. c. 6; also in. c. 8, and i. c. 17. 

211. See e.g. Ockham, Octo q. in. c. 8, Dial, i, 6, c. 85, 
91 — 100. — So too Wyclif and Hus, rejecting the severance of Clergy 
and Laity, end by placing the ecclesiastical power in the hands of the 
State. See Lechner, Johan v. Wiclif, i. p. 566 ff. and 597 ff. 

212. [Dr Gierke here refers to other parts of his work in which 
he has given copious illustrations of this matter. The office or 
dignity can be 'objectified,' i.e. conceived as a 'thing' in which 
rights exist, and which remains the same while men successively 
hold it; and then again it can be 'subjectified' and conceived as a 
person (or substitute for a person) capable of owning things. In the 
present note he cites from Baldus 'dignitas...vice personae fungitur,' 
and refers to a legal opinion touching a mitre which the deposed 
John XXIII. was detaining from Martin V. and which was said to 
belong to the (subjectified) Apostolic See.] 

213. [Our author here refers to his treatment of this subject in 
other parts of his book. It was generally agreed that, although the 
Prelate was very often entitled solely to exercise those rights which 
legal texts ascribed to his eccksia, still he was not the ecclesia. Divers 
analogies were sought. He acts 'sicut maritus in causa uxoris'; 
or again, he is the tutor and the ecclesia is his pupillus. They 
all imply that, beside the Prelate, there is some other person con- 
cerned. Then practical inferences were drawn : e.g., a Prelate may 
not be judge in causa propria \ but it is otherwise in causa ecclesiae 
suae.\ 

214. Only in this sense 'papa ipse ecclesia' (e.g. Huguccio, 1. c, 
p. 263), • papa est sedes apostohca ' (Dur. Spec. i. i de leg. § 5, nn 
i), 'ecclesia intelligitur facere quod facit papa' (Joh. And. Nov. s. 
c. I in Sexto, 2, 12, nr. i). Comp. Domin. Gem. Cons. 93, nr. 12; 
Cardin. Alex, in summa D. 15 (what the head does, the body does); 
Jacobat, De cone. iv. a. 7, nr. 29—31, vi. a. 3, nr. 41 and sSfiF,: the 
present Pope alone represents the whole church and is thus ecclesia 
corporalis : such also is the case of a Bishop in those matters in 
which the counsel, but not the consent, of the Chapter is requisite. 

215. Ockham, Dial. i. 5, c. 25: only within certain limits is 



Notes. 163 

the Pope 'persona publica totius communitatis gerens vicem et Is the 
curam.' Zabar. c. 6, X. 1, 6, nr. 16 : non solus sed tanquam caput ^°P^^* 
universitatis. Gerson, Da aufer. c. 8 — 20, Da pot. eccl. c. 7. Nic. sentation 
Cus. I. c. 14—17, II. c. 27 ff. Ant. Eos. 11. c. 20—24, in. c. 16—17. church 

216. Baldus, Rubr. C. 10, i, nr. 12, 13, 18: princeps leprae- unlimited' 
sentat ilium populum et ilia populus imperium etiam mortuo Repre- 
principe ; but ' princeps est imperium, est fiscus,' because only in him of the 
does the Empire live, will and act. Cons. iii. c. 159, nr. 5 : 'ipsa Empire 
respublica rapraesentata ' can be bound by the acts of the Emperor. Emperor. 
Also Ockham, in Note 210 above, and Zabarella in Note 192. 

217. Already Joh. Saresb. iv. c. 3: the king 'garit fideliter Repre- 
ministerium,' if he ' suae conditionis memor, universitatis subiect- tentative 

' ' Character 

orum se personam gerere recordatur'; compare c. 5. Thom. Aquin. of King- 
Summa Theol. II. i, q. 90, ad 3 : Ordinare autem aliquid in bonum P" 
commune est vel totius multitudinis vel alicuius gerentis vicem totius 
multitudinis : et ideo condere legem vel pertinet ad totam multitudinem 
vel pertinet ad personam publicam quae totius multitudinis curam 
habet. So again ib. 97, a. 3. Mars. Pat. Def. pac. i. 15 : when the 
rulers (j/rtndpantes) act within tha sphere constitutionally assigned 
to tham (secundum communitatis determinationem legalem), their 
act is that of the whole community (hoc facientibus his, id facit 
communitas universa). Baldus, Consil. 159, nr. 5 and especially 
I Feud. 14, pr. nr. i : 'The city of Bologna belongs to the Church!" 
exclaims Baldus, ' Much rather to the Bolognesa ! For the Church 
has no authority there, save as {tanquam) the Republic, of which 
Republic it bears the name and image. Even so tha city of Siena 
belongs to the Kaiser, but more to the Sienese : for republic, fisc, 
and prince are all one ; tha respublica est sicut vivacitas sensuum ; the 
fisG is the stomach, purse and fastness of the republic ; therefore 
the Emperor would be quasi tyrannus if ha did not behave himself 
as tha Republic, and such are many other kings who seek their own 
profit : for he is a robber, apraedo, who seeks his own profit and not 
the profit of the owner.' [Dr Gierke gives this interesting passage in 
Latin.] See also nr. 2 : the office of ruler (dignitas) is inalienable, 
being ' totius universitatis decus.' Barth. Salic. 1. 4, C. 2, 54 : the 
civitas as such can demand a restitutio in integrum, even if tha Ruler 
who acted in its name profited by the transaction : and, despite 
the translatio, this holds good of tha respublica imperii. Jason, 1. c, 
nr. 8. Nic. Cus., above in Note 171. 

2x8. Baldus, Cons. in. c. 159, nr. 5 : loco duarum parsonarum The 
rex fungitur; i. c. 271, nr. 4: bona propria... non tanquam rex, sed '^°^^'' 
tanquam homo et animal rationabile. Alex. Tart. 1. 25 § i, Dig. 29, Person- 

ii_2 ality. 



[64 Political Theories of the Middle Age. 



2, nr. 4: fiscalis res et Caesaris res est eadem, quia omnia iura 
fiscalia transferuntur in eum tanquam imperatorem non tanquam 
Titium : but with the ' patrimonium Caesaris ' it is otherwise, for this 
he has ' tanquam Titius.' Marcus, Dec. I. q. 338, nr. i — 7. [Refer- 
ence is made by Dr Gierke to other parts of his book where the dual 
personality of bishops and the like is discussed : a bishop, it was 
said, had two persons; one 'in quantum est episcopus'; the other 
' in quantum est Petrus vel Martinus.'] 
King's 219- See last note. Also Ockham, Octo q. 11. c. 2: what the 

Property^ Kaiser had before he was Kaiser. or afterwards acquired 'perse et 
Property, non dignitati,' is his private property. On the other hand, the 'bona 
et iura imperii ' exist ' propter bonum commune subditorum et non 
propter bonum proprium principatus.' Of these last he can dispose 
'non nisi propter bonum commune seu utilitatem omnium subdit- 
orum,' and if he do otherwise he is bound to make restitution like 
anyone else who misapplies goods that have been entrusted to him. 
Acts of 220. Baldus, Cons. i. 271, 326, 327; iii. c. 159, 371. The 

'*'* ^"""^^ question is whether and in what case a Prince, elective or hereditary, 
of the is bound by the acts of his predecessor, and Baldus always acutely 
*"*"• reduces this to the question in what cases the State, or the Fisc, is 
bound by the acts of its highest organ. When it comes to particu- 
lars, he applies the ordinary rules of Corporation Law touching the 
liability of corporations for the contracts and torts of their governors; 
but in the case of Kings and more especially of hereditary Kings 
he supposes an unusually wide power of representation. A king is 
no mere 'legitimus administrator,' but stands 'loco domini' (nam 
regnum magis assimilatur dominio quam simplici regimini); and in 
particular his power to bind by contract extends to unusual as well 
as to usual affairs. In the same sense, Jason, Cons. iii. c. 10, 
distinguishes the Ruler's 'pacta personalia,' and 'pacta realia nomine 
suae gentis inita' (c. 8), extends the principle to judicial acts (nr. 10), 
appeals to ecclesiastical analogies (nr. 15 — 19), and then declares 
that the successor is bound as successor ' si princeps faciat ea quae 
sunt de natura vel consuetudine sui officii' (nr. 21), or if the conven- 
tion was made 'in utilitatem status' (nr. 14). Comp. Bologninus, 
Cons. 6. On the other hand Picas a Monte Pico, i. Feud. 3, nr. i — 3, 
and I. Feud. 7, nr. t — 17, once more throws the whole question into 
confusion. 

221. Nic. Cus., above in Notes 171 and 209; Gerson, De pot 
eccl. c. 10, and Concordia, p. 259. 
Duties 2 22. See, e.g. Eng. Volk. De reg. princ. iv. c. 21 — 29; alongside 

towards jjjg duties arising between individuals as men, as fellow countrymen, 



Notes. 165 

as fellow burgesses, as kinsmen, as members of social groups, stand Indivi- 
their duties to the Whole which arise out of 'ilia coniunctio qua ^Ifj^g^*"^ 
unusquisque privatus universitati sive reipublicae tanquam membrum the Com- 
corpori et tanquam pars toti consociatur.' Comp. vii. c. 8 — 12 as to """""y- 
the different ' status personae.' 

223. Mars. Pat. 1. c. 12: the ;>(?/«/«j- is sovereign j the /<?/«/?« Rights of 
is the universitas civium ; a civis is one who ' secundum suum ** 9°'"' 

munity 

gradum ' takes part in public affairs ; excluded are ' pueri, servi, exercised 
advenae ac mulieres.' So Thorn. Aq. Coram, ad Polit. p. 45? and ^^^^^^ 
460 (comp. also Summa Theol. 11. i, q. 105, a. i) and Patric. Sen. Members. 
De inst. reip. i. 3, p. 22 define civis in the Aristotelian way, so as to 
equate it with ' active citizen.' 

224. Lup. Bebenb. c. 17, p. 406: et intelligo populum Romani Repre- 
imperii connuraeratis principibus electoribus ac etiam aliis prin- 5^"'*''°" 
cipibus, comitibus et baronibus regni et imperii Romanorum : nam People as 
appellatione populi continentur etiam patricii et senatores. And so of EsJate 
other writers. — Even the Radical Marsilius admits to the legislative 
assembly everyone 'secundum suum gradum 'j tries to secure the 
influence of the docti et sapientes in the discovery and redaction of 

laws, and apparently would give no unconditional support to a system 
of equal votes, for the vakntior pars which decides seems to be 
measured 'secundum politiarum consuetudinem honestam.' See 
Def. pac. I. 12 — 13 and 15; also De transl. imp. c. 6. 

225. Mars. Pat. Def. i. pac, c. 12 — 13 : the voluntas of the uni- will of 
versitas civium becomes law by being expressly declared in the *^ People 

6Xpr€SS6Cl 

congregatio generalis ; i. a 17 : the act is a single act though done by by Assam- 
many in common; ill. c. 6. So also Aegid. Col. 11. i, c. 3. ^''^^• 

226. From Corporation Law are deduced the exclusive right of The Rules 
the Pope to summon the Council (e.g. Card. Alex. c. 2, D. 17), and po^°[Jn 
by others a right of summons normally to be exercised by the Pope Law are 
(Jacobat. De Cone, iv, a. 7, nr. 24; Ant. Ros. in. c. 1—3). but pPJiJ^f^/" 
supplemented by a right of the Cardinals or such part of their body Assem- 
as does not make default (Zabar. De schism, p. 689 ; Ros. in. c. 3 ; 
Decius, Cons. 151, nr. 13 — 22) and of the Kaiser (above, Note 48); 

and the right of the Council to assemble itself is similarly deduced 
(above, Notes 188, 192, 203). It is opined that if all the members, 
though unsummoned, were present, then, as in the case of other 
corporations, they might proceed to business (Ros. 11. c. 4). If all 
are not present, then Zabarella (comp. De schismate, pp. 693—4) 
vouching Innocent [IV.] would require the presence of two-thirds, 
who would then have to summon the others and wait until they 
either appeared or could be declared guilty of contumacy. On the 



1 66 Political Theories of the Middle Age. 



Corpora- 
tion Law 
and the 
Genera! 
Council. 



Majorities 

how 

reclconed. 



Other hand, Rosellus (m. c. 4) and Jacobatius (iv. a. 7, nr. 25—8) 
argue that in the case of the Council an imminens periculum vel 
necessitas may always be presupposed, and that, when this is so, even 
a minority can summon the others and preclude them, since, accord- 
ing to Corporation Law, the pars in casu periculi non contumax 
is in truth the maior et sanior pars. [In an earlier part of his book 
Dr Gierke has explored the formation of a law and theory of corpo- 
rate assemblies. The legists, relying on certain texts which concerned 
the Roman decuriones, were inclined strictly to require the presence 
of two-thirds of the members. This requirement the canonists 
mitigated in divers fashions. They also held that if no meeting had 
been summoned, but two-thirds of the members were present, those 
present might proceed to business, but ought to summon the others 
unless there were danger {periculum) in delay. Then, according to 
the canonists, it was not a mere motor pars but a maior et sanior pars 
that could validly outvote a minority.] 

227. See especially Jacobat. iv. a. 7. He elaborately argues 
that 1. 3 et 4, Dig. 3, 4 are not to be applied, and that, according to 
the canonical principle ' Vocati non venientes constituunt se alienos,' 
even a minority can act (nr. i — 16); also that the right of the 
contempti to re-open a question has no existence in this case, since a 
citatio generalis is sufficient (nr. 16 — 23); and so forth. Also Ros. 
HI. c. 7 — 14 (in c. 14 the requirement of two-thirds is set aside). 
Card. Alex. c. 2, D. 17. [The Canonists had practically circum- 
vented the requirement that two-thirds of the members should be 
present, by holding that those who failed to appear when duly 
summoned were in contempt, had 'made themselves alien' and were 
not to be counted.] 

228. Zabar. De schism, p. 689. Panorm. c. 26, X. 2, 27, nr. 13. 
Even in the Council the voice that prevailed was to be that of the 
greater 'and sounder' part (Card. Alex. c. 1, D. 15 in fine; Jacobat. 
IV. a. 3, nr. i — 41) ; and with this was connected the principle that 
matters of faith were not to be decided by mere majorities (Jacobat. 
1. c. nr. 7—12 and 25; Nic. Cus. i. c. 4). The words of Cusanus 
(11. c. 15) carry us back to old Germanic thoughts : quia quisque ad 
synodum pergens iudicio maioris partis se submittere tenetur... 
synodus finaliter ex concordia omnium definit. [The old Germanic 
thought is that unanimity is requisite, but that a minority ought to 
and can be compelled to give way.] Also we may see that the iura 
singulorum are to be protected against the vote of the majority 
(Jacobat. 1. c. nr. 27—32). During the strife over the adjournment 
of the Council of Basel, an odd inference was drawn from this 



Notes. 167 

principle, namely, that the minority or even any one member could 
resist an adjournment to another place on the ground of 'vested 
right' {ius quaesitum) '. see Ludov. Rom. Cons. 352, nr. 10 — 24, and 
Cons. 522 ; Jacobat. 1. c nr. 36 — 39, and ib. a. 7, nr. 35. [Under 
the rubric iura singulorum, medieval law withdraws from the power 
of the majority rights of individual corporators which are more or 
less closely implicated in the property and affairs of the corporation. 
A modern example would be the shareholder's 'share': this does not 
lie at the mercy of a majority; a medieval example would be a 
canon's 'prebend.'] 

229. The plan of voting by Nations was justified by the rules Majorities 
that dealt with the conjoint action of divers corpora (Panorm. c. 40, ^*-. 

X. I, 6, nr. 6, Jacobat. iv. a. 3, nr. 52 — 57), while the opponents of intlie 
that plan made much of the unity of the whole body of the Church '^°™'=''- 
(Card. Alex. c. i, D, 15 in fine). See Hiibler, p. 279, n. 60 and 
316 ff. [The federalistic character of medieval groups gave rise to 
many elaborate schemes for securing a certain amount of unity and 
independence to those smaller bodies that were components of a 
larger body, e.g. the faculties and nations within an university.] 

230. See e.g. Mars. Pat. Def pac. i. c. 12, 13, 15, 17 : what the The 
valentior pars does is 'pro eodem accipiendum' as that which the '^^J""'? 

... . , , . . . as a Repre- 

tota umversitas does, for the ' valentior pars totam umversitatem sentation 
repraesentat.' Eng. Volk. De reg. pr. i. c. 5, 7, 10, 14. Lup. ?^*^ 
Bebenb. c. 6 and 12. Ockham and Ant. Ros. as above, in 
Note 145. 

231. Ockham, Dial. iii. tr. 2, 1. i, c. 29 — 30: quaecunque corporate 
universitas seu communitas particularis propter culpam suam potest "^orts 
privari quocunque honore et iure speciali ; and therefore for culpa the Roman 
Romans may be deprived of their lordship in the Empire ; and so People, 
with other nations ; and so for their culpa whole portions of mankind 

can be deprived of their active rights in the World-State, and many 
think that this has happened to the Jews and Heathen, their share in 
the Empire having 'devolved' to the Christians. But, according to 
1. 2, c. s, there ought to be a formal sententia of the umversitas 
mortalium or its representatives. Whether the papal 'translatio a 
Graecis in Germanos' was founded on this principle and whether 
that act was rightful or wrongful could, says Ockham (Octo q. 11. c. 9), 
be known only to one who possessed all the documents of that age. 

2^2. See the definition given by Konrad v. Gelnhausen, De Repre- 

,.,.,- ^ > sentative 

congreg. cone. temp, schism, an. 1391 (in Martene 11. p. 1200; : character 

concilium generale est multarum vel plurium personarum rite con- of the 

.... J- ^ , Council, 

vocatarum repraesentantium vel gerentium vicem diversorura statuum, 



[68 Political Theories of the Middle Age. 



The * 
Council 
a mere 
Repre- 
sentative. 



Election 
and Repre' 
sentation. 



Election 
of Lay 
Repre- 
sentatives. 



Repre- 
sentation 
in Tem- 
poral 
Assem- 
blies. 



ordinum et personarum totius Christianitatis venire aut mittere 
volentium aut potentium ad tractandum de bono communi uni- 
versalis ecclesiae in unum locum communem congregatio. Gerson, 
De aufer. c. lo; De pot. eccl. c. 7 ff. Nic. Cus. De auctor. praes. 
(in Dux, I. p. 475 ff.) : the Pope is the remotest, the General Council 
the directest and surest representative of the Universal Church. 
Decius, c. 4, X. i, 6, nr. 21. 

233. See Ockham, Dial. i. 5, c. 25 — 28 : even the representative 
Council is only pars ecclesiae; it stands below the 'comraunitas 
fidelium si posset convenire ' ; is summoned by human agency and 
can be dissolved ; and it can err, so that resistance to, appeal from, 
and accusation against it are not inconceivable. Similarly at some 
points, Petr. AUiac. in Gers. Op. i. p. 688 ff., and again at the 
Synod of Constance (Sess. I. in Mansi, xxvii. p. 547). — So Breviscoxa 
(Gers. Op. i. p. 898) speaks with hesitation about the Council's 
infallibility. — On the other hand, Gerson and Cusanus (11. c. 15 — 16) 
maintain its infallibility, its representation of the Church being 
absorptive. 

234. Nic. Cus. I. c. 15 and 11. c. 18: it is on the ground of 
election that ' praesidentes figurant suam subiectam ecclesiam ' and 
that Councils of such prelates represent the larger circles of the 
Church ; and so on up to a representation of the Church Universal. 
Ant. Butr. c. 17, X. i, 33, nr. 27 — 28 : at the Provincial Councils the 
Prelates and ' Rectores ' do not appear as individuals, but ' quilibet 
praelatus vel rector tenet vicem universitatis.' Zabar. c ult., X. 3, 
10, nr. I — 3. Panorm. c. 17, X. i, 33, nr. 2 : in the General Council 
' praelati totius orbis conveniunt et faciunt unum corpus, repraesent- 
antes ecclesiam universalem ' ; so the praelati et maiores of the 
province represent their universiiates, and so in their Provincial 
Assembly they represent the universiiates ecclesiarum of the province ; 
and again 'in una dioecesi.. .praelati et capitula repraesentant totum 
clerum ' ; and so also is it in the constitution of Universities. 

235. Ockham, Dial. i. 6, c. 84 (above, Note 209) : he appeals to 
the general right of every people, every commune, every corpus, to 
assemble, not only in proper person but also ' per aliquos electos a 
diversis partibus,' for every body 'potest aliquos eligere qui vicem 
gerant totius communitatis aut corporis.' 

236. See above. Notes 161 — 3, 168, 172. MarsiL Pat i. c. 
1 2 — 13 : vicem et auctoritatem universitatis civium repraesentant. Nic. 
Cus. III. c. 12 and 25. Men thought that certain texts in the Corpus 
Juris assigned a similar position to the Roman Senate. [Our author 
is referring in particular to certain words of Pomponius (1. 2, § 9, 



Notes. 169 

Dig. I, 2) which, he says, exercised a marked influence on Political 
Theory ; deinde quia difficile plebs convenire coepit, populus certe 
multo difficilius in tanta turba hominum, necessitas ipsa curam 
reipublicae ad senatum deduxit. He here remarks that already in 
the Brachylogus — a manual of Roman law which he is inclined to 
ascribe to Orleans and the twelfth century — these words of Pomponius 
are supposed to record a formal transfer of power by the populus to 
the senate.] 

237. See the formulation of the general principle in Ockharn 
(above. Note 235) and Mars. Pat. 1. c. 

238. Nic. Cus. III. c. 12 and 25 : elected governors are to The 
represent communities j assemblies of such governors are to repre- sgntatiVe 
sent the lands and provinces ; and an universale concilium imperiale Parlia- 
is to represent the £eich : in this council ' praesides provinciarum ^^" ^"^ 
suas provincias repraesentantes ac etiam universitatum magnarum Nicholas 
rectores ac magistri ' and also men of senatorial rank are to meet ; 

they will compose the ' corpus imperiale cuius caput est Caesar, et 
dum simul conveniunt in uno compendia repraesentativo, totum im- 
perium collectum est! 

239. Mars. Pat. I. c. 12 — 13; he says in c. 12: sive id fecerit The 

,. . . ^ . 1 .• • Radical- 

universitas praedicta civium aut ems pars valentior per se ipsam -^^^ ^^ 

immediate, sive id alicui vel aliquibus commiserit faciendum, qui Marsilius. 

legislator simpliciter non sunt nee esse possunt, sed solum ad aliquid 

et quandoque ac secundum primi legislatoris auctoritatem. 

240. Lup. Bebenb. c. 5, p. 352 — 3 and c. 6, p. 357 — 8: the The Prince 
Prince Electors make the election ' repraesentantes in hoc omnes ^'^g°"g. 
principes et populum Germaniae, Italiae et aliarum provinciarum et sentatives. 
terrarum regni et imperii, quasi vice omnium eligendo.' Were it not 

for their institution, the ' universitas ipsa ' would have to make the 
choice ; but, as it is, the Electors choose ' vice et auctoritate univer- 
sitatis.' When therefore they have made the choice, ' proinde est ac 
si tota universitas principum et populi...fecisset' ; to prove which 
voucher is made of 1. 6 § i, Dig. 3, 4, and c. ult. in Sexto deprae- 
bendis. See also the participation of the Electors in the deposition 
of an Emperor, c. 1 2, p. 386 — 7, and in the alienation of rights of 
sovereignty, c. 14, p. 396. — Comp. Ockham, Octo q. viii. c. 3: 
'repraesentantes universitatem.' Zabar. c. 34 § vemm X. i, 6, nr. 8, 
Nic. Cus. in. c. 4 : * qui vice omnium eligerent.' Gregor. Heimb. 
m Gold. I. p. 561. Ant. Ros. i. c. 48. 

241. See above. Notes 174 and 194. Ockham, Dial. i. 5, c. 6 The 
and 8. Nic. Cus. i. c. 14, i7. "• c- H (repraesentant) ; Ant. Ros. ^"^^"f^' 
I. c. 48 : ab universal! ecclesia, quam cardinales et electores in hoc sentatives. 



lyo Political Theories of the Middle Age. 



ipsam totam repraesentant— Nic. Cus. n.c. 14— iS desires therefore 
to extend to the Cardinals the elective principle, which is in his eyes 
the only conceivable foundation for a mandate in political affairs. 
The Cardinals ought to be elected provincial deputies forming an 
Estate and constituting in some sort the aristocratic Upper House of 
a parliamentarily organized Spiritual Polity. 
Corpora- 242. Hostiensis, Johannes Andreae (a 34, X. i, 6, nr. 25) and 

tion Law ^^j^^^.^ opined that the Prince Electors made the choice as indivi- 
Imperial duals, «ut singuli.' Lup. Bebenb. c. 6, pp. 356—8, andc. 12, pp. 379 
Elections. _g^^ argues that much rather they are representatives of an univer- 
sitas, and must themselves meet 'tanquam collegium seu universitas' 
and make the choice communiter. Therefore he would here apply 
the principle of the 'ius gentium, civile et canonicum' which teaches 
that an election made by an absolute majority is 'electio iuris inter- 
pretatione concors ' and exactly equivalent to an unanimous election. 
So too Zabarella (c. 34 § verum, X. i, 6, nr. 8) who cites Leopold : in 
all respects the same procedure should be observed as 'in aliis 
actibus universitatum' : thus, e.g., the requirement of the presence 
of two-thirds of the members, the preclusion of those who do not 
attend, and so forth. Comp. also Cons. 154, nr. 6. Fehnus, c. 6, 
X. I, 2, nr. 29. Bertach. Rep. v. maior pars, nr. 27. Petrus de 
Andlo, II. c. I — 4, treats the Election of an Emperor at great length, 
and in detail subjects it to Roman and canonical rules for the 
election of prelates which are stated by Johannes Andreae, Antonius 
de Butrio, Johannes de Anania, Baldus and Panormitanus. Thus 
it is in the matter of summons and presidency, form of scrutiny, 
decision with absolute majority, accessio, self-election ; so also in the 
matter of the demand for and grant of examination and approbation 
on the part of the Pope, and the devolution or lapse of the election 
to the Pope ; and so again as to the requirement of an actus commu- 
nis, the right of objection of unus contemptus, the privation of scienter 
eligentes indignum. For he opines that 'these Electors have suc- 
ceeded to the place of the Roman People, who ut universitas elected 
an Emperor, and so the Electors must be conceived to act in the 

Corpora- game right [i.e. ut universitasX since a surrogate savours of the 
tion Law . , . , , • , 

and Papal nature of him whose surrogate he is. 

Elections. g^j. See Innoc, Host., Ant. Butr., Zabar., Panorm., Dec. on 

uJversal c. 6, X. I, 6 ; Aug. Triumph, i. q. 3 ; Alv. Pel. i. a. i; Ludov. Rom. 

Church Cons. 498, nr. i — 22 (applying the whole of the law about decu- 

Particular ^^°^^)> Ant. Ros. II. c. 8 — lo; Bertach. v. gesta a maiori parte. 

Churches 244. [Dr Gierke here refers to other parts of his work where he 

MratkJns. ^^^ *^**^' ^''^ ''^^ Canonists' conception of every church as a corpus.'\ 



Notes. 1 7 1 

24?. Baldus s. pac. Const, v. imp. clem. nr. 4 : the Emperor, The 

,,,..,. , . . . Empire 

Baldus explains, is speaking ' de ista magna universitate, quae omnes or State 
fideles imperii in se complectitur tam praesentis aetatis quam succes- ^^ a Cor 

■ 1 T. T^ -1 r poration. 

sivae posteritatis. Prooem. Feud. nr. 32 : non potest rex facere 
deteriorem conditionem universitatis, i.e. regni. Ruhr. C. 10, i, nr. 
11: Respublica as an 'Object' means publica res, as a 'Subject' 
ipsa universitas gentium quae rempublicam facit. Zabar. c. 13, X. 5, 
31, nr. I — 7 brings in the learning of Corporations, defines corpus or 
collegium as 'collectio corporum rationabilium constituens unum 
corpus repraesentativura,' distinguishes 'collegia surgentia naturaliter,' 
which so soon as they have come into being are also ' necessaria,' 
and * collegia mere voluntaria' ; in the former class he reckons com- 
munes, provinces and realms, and therefore brings in at this point the 
learning of the six Aristotelian forms of government, and the doctrine 
of the World-Monarchies and their relation to the Church. 

246. Baldus, Cons. in. c. 159. Comp. ib. c. 371, and i. c. 326 Perpetuity 
— 327 and c. 271 (respublica et fiscus sunt quid aeternum et per- 3(^fg_ 
petuum quantum ad essentiam, licet disponens saepe mutetur). 

Comp. also Jason, Cons. in. c. 10, where in nr, 14 we already meet 
the phrase ' conventio facta in utilitatem Status.' 

247. Baldus, Rubr. C. 10, 1, nr. 15 — 16. 

248. See above, Notes 212 and 218 — 20J also 190 and 206. 

249. See above, Notes 213 — 7. 

250. See above. Note 118. 

251. See above. Notes 221 — 231. 

252. Expressly d'Ailly, Gerson (De pot. eccl. c. 10) and Mere Col- 
Nicholas of Cues (11. 34) vest all the rights of the Church in the '^'^'^5*'" 
'omnes collective sumpti.' But also Marsilius, Randuf and others Concept 
leave no room for doubt that for them the Church, considered as the church. 
Congregation of the Faithful, is coincident with the sum of indi- 
viduals. And if Ockham in one passage (Octo q. i. c. 11) names 

as the receiver of the divine mandate the ' persona communitatis fide- 
lium,' still his whole system, as set forth above, and most unambigu- 
ously his discussion of the whereabouts of the Church's infallibility, 
prove that he is not thinking of a single personality which comes to 
light in organization, but of a personified collective unit. See above, 
Notes 188 and 208. 

253. Turrecrem. De pot. pap. c. 7 1 — 72: where the power of the The 
keys is ascribed to 'the Church,' this means in truth that she has it '^'^'^^ 
in some of her members and the whole of it only in her head. ' Subject ' 

254. See in particular Nic. Cus. as above in Note 171, also iii. "f^'^^'^' 
c 4 (vice omnium), 12 and 25; Mars. Pat. i. c. 12 — 13; Lup. pgopig ^ 



172 Political Theories of the Middle Age. 



Collective Bebenb. c. 5—6 ; Ockham, Dial. i. 6, c. 84 ; Patric. Sen. De inst. 
^°''' reip. I. I, s (multitudo universa potestatem habet coUecta in unum,..., 
dimissi autem singuli rem suam agunt). 

255. See above, Notes 215 — 8, 228, 230, 232 — 42. 
The Law 256. That there was a Law of Nature was not doubted, nor that 

and'di"^ it flowed from a source superior to the human lawgiver and so was 
Essence absolutely binding upon him. Such was the case whatever solution 
of Law. jjjjgjjj. ijg found for that deep -reaching question of scholastic contro- 
versy which asks whether the essence of Law is Will or Reason. In 
any case God Himself appeared as being the ultimate cause of 
Natural Law. This was so, if, with Ockham, Gerson and d'Ailly, 
men saw in Natural Law a Command proceeding from the Will of 
God, which Command therefore was righteous and binding. It was 
so, if, with Hugh de St Victor, Gabriel Biel and Almain, they placed 
the constitutive moment of the Law of Nature in the Being of God, 
but discovered dictates of Eternal Reason declaring what is right, 
which dictates were unalterable even by God himself. Lastly, it was 
so, if, with Aquinas and his followers, they (on the one hand) derived 
the content of the Law of Nature from the Reason that is immanent 
in the Being of God and is directly determined by that Natura 
Rerum which is comprised in God Himself, but (on the other hand) 
traced the binding force of this Law to God's Will. Aquinas 
(Summa Theol. 11. i, q. 90 — 92), when he has discussed the nature, 
kinds and operations of a Lex in general, and has defined it (q. 90, 
a. 4) as ' quaedam rationis ordinatio ad bonum commune, et ab eo, 
qui curam communitatis habet, promulgata,' proceeds to put at the 
head of his Philosophy of Law the idea of Lex Aeterna. And this, 
he says, as being 'ipsa ratio gubernationis rerum in Deo sicut in 
Principe universitatis existens,' and ' summa ratio in Deo existens,' is 
Identical with the Being of God {non aliud a Deo), but at the same 
time is a true Lex, absolutely binding, and the source of every other 
Lex (omnis lex a lege aeterna derivatur); 1. c. q. 91, a. i, q. 93, a. i — 6. 
Immediately from this he derives the Lex Naturalis which is grounded 
in the participation by Man, as a reasonable being, in the moral 
order of the world (participatio legis aeternae in rational! creatura) 
and is perceived by the light of Natural Reason (lumen rationis 
naturalis) entrusted to us by God (q. 91, a, 2, q. 94). It is a lex 
promulgata, for 'Deus eam mentibus horainum inseruit naturaliter 
cognoscendam ' (q. 90, a. 4); it exists in actu and not merely in 
habituif^. 94, a. i); it is in its principles a true, everywhere identical, 
unalterable and indestructible rule for all actions (q. 94, a. 3 — 6). 
[Dr Gierke here cites a note in his tract on Johannes Althusius 



Notes. 173 

(p. 73) in which he has dealt with the same matter and from which 
we take the following sentences, though they reach beyond the 
Middle Age.] 

The older view, which is more especially that of the Realists, 
explained the Lex Naturalis as an intellectual act independent of 
Will — as a mere lex indicativa, in which God was not lawgiver but a 
teacher working by means of Reason — in short, as the dictate of 
Reason as to what is right, grounded in the Being of God but 
unalterable even by him. (To this effect already Hugo de S. Victore 
Saxo, in the days of Calixtus II. and Henry V., Opera omnia, Mog. 
1617, III. p. 385, de sacramentis i. p. 6, c. 6 — 7; later Gabriel Biel, 
Almain and others.) The opposite opinion, proceeding from pure 
Nominalism, saw in the Law of Nature a mere divine Command, 
which was right and binding merely because God was the law-giver. 
So Ockham, Gerson, d'Ailly. The prevailing opinion was of a 
mediating kind, though it inclined to the principle of Realism. It 
regarded the substance of Natural Law as a judgment touching what 
was right, a judgment necessarily flowing from the Divine Being and 
unalterably determined by that Nature of Things which is comprised 
in God ; howbeit, the binding force of this Law, but only its binding 
force, was traced to God's Will. Thus Aquinas, Caietanus, Soto, 
Suarez. In like fashions was decided the question. What is the 
constitutive element of Law [or Right] in general? Most of the 
Schoolmen therefore held that what makes Law to be Law is 
'iudicium rationis quod sit aliquid iustum.' So with even greater 
sharpness Soto, De iustitia et iure, Venet. 1602 (first in 1556), i. q. i, 
a. I, and Molina, Tract, v. disp. 46, §§ 10 — 12. Compare also 
Bolognetus (1534 — 85), De lege, iure et aequitate, Tr. U. J. i. 289 fF. 
c. 3 ; Gregorius de Valentia, Commentarii theologici, Ingoldst. 1592, 
II. disp. I, q. I, punct. 2. The opposite party taught that Law 
becomes Law merely through the Will that this or that shall pass for 
Law and be binding; or they laid all the stress on a Command 
{imperium) given to subjects. Others, again, declared that intellectus 
and voluntas were equally essential. Only Suarez, who reviews at 
length all the older opinions, distinguished at this point between 
Positive Law and Natural Law, and in the case of the former sees 
the legislative Will (not however the law-giver's command) as the 
constitutive, while Reason is only a normative, moment (i. c. 4 — 5 
and in. c. 20). In the later Philosophy of Law the derivation of all 
Law from Will and the explanation of both Natural and Positive 
Law as mere Command was well-nigh universal. Only Leibnitz 
(1646— 1 7 16), who in so many directions went deeper than his 



1 74 Political Theories of the Middle Age. 



contemporaries, and who, perhaps for this reason, so often turned 
his eyes backwards towards medieval ways of thought, disputed this 
' Will-Theory ' with powerful words directed against Pufendorf and 
Cocceji. He denied the essentialness of the idea of Compulsion in 
the idea of Law, and argued that Recht was prior to Geseiz. ' Das 
Recht is nicht Recht weil Gott es gewoUt hat, sondern weil Gott 
gerecht ist.' See Opera, ed. Dutens, Genev. 1768, iv. 3, pp. 275—83, 
also p. 270 ff. § 7 fif. and § 13. 

[In another note Dr Gierke (Joh. Althusius, p. 74) cites the 
following passage from the German, Gabriel Biel (ob. 1495). In his 
CoUectorium Sententiarum, Tubing. 1501, lib. 11. dist. 35, q. un., 
art. I, he says : Nam si per impossibile Deus non esset, qui est ratio 
divina, aut ratio ilia divina esset errans, adhuc si quis ageret contra 
rectam rationem angelicam vel humanam aut aliam aliquam si qua 
esset, peccaret. Et si nulla penitus esset recta ratio, adhuc si quis 
ageret contra id quod agendum dictaret ratio recta si aliqua esset, 
peccaret. ' Already ' Dr Gierke adds, ' medieval Schoolmen had 
hazarded the saying, usually referred to Grotius, that there would be 
a Law of Nature, discoverable by human reason and absolutely 
binding, even if there were no God, or the Deity were unreasonable 
or unrighteous.'] 
Nullity 257. Thom. Aquin. Sum. Theol. 11. i, q. 91, art. 2, q. 94, a. i — 6, 

clir^^ q- 97. a. 1 (the whole people bound); 11. 2, q. 57, a. 2. Aegid. 
veiling the Rom. De reg. princ. iii. 2, c. 29 : the rex stands below the lex 
Nature. naturalis. Vincent. Bellovac. vii. c. 41 ff. and X. c. 87 : ipso iure 
non valent leges quia nulla lex potest valere contra Deum. Joh. 
Friburg. 11. t. 5, q. 204 — 6, t. 7, q. 43 ('leges permittentes usuras ' 
are null). Ockham, Dial. iii. tr. r, 1. 2, c. 6, and tr. 2, 1. 2, c. 26 — 8 
(as to Kaiser and Pope), ib. c. 29 (as to the universitas popult), and 
tr. 2, 1. I, c. 30 (even an unanimous decision of the universitas 
mortalium could not wholly abolish the Roman Empire). Baldus, 
I. Feud. I § 3, nr. 2 (potentius est ius naturale quam principatus), and 
1. I, Cod. I, I, nr. 24 fF. (therefore Kaiser and Pope could not, e.g., 
make usury lawful). Gloss on the Sachsensp. i. a. 25 and 55. 
Bened. Capra, Regula 10, nr. 20 — 43 and 53 (as \.o princeps, papa, 
imperator, populus seu universitas with iurisdidio and imperium). 
Feliims Sand. c. 7, X. i, 2, nr. 19 — 25 (as to Pope) and nr. 26 flf. (as 
to imperator, princeps, populus liber). Petr. AUiac. in Gers. Op. i. 
p. 6s2ff. Nic. Cus. III. c. 5. Ant Ros. IV. c 2 — 14. As to the Pope, 
see above. Note 132, and as to the Council, see Gerson in Note 198. 
Revealed 258. So in particular Thom. Aquin. Sum. Theol. 11. i, q. 91, 

Law and ^^j j — ^ and 4 — 5 ; he thereafter (q. 98 — 105) treats at length of 



Notes. 1 75 

the lex vetus, and (q. io6 ff.) of the lex nova. Comp. Aegid. Rom. Natural 
De reg. princ. iii. 2, c. 24 — 9 {lex naturalis) and c. 30 {lex divind). ^^'"' 
Gerson, iv. p. 652 — 4. See also the passages cited in the last Note, 
in which the force of the lex divina is placed on a level with that of 
the lex naturalis, this principle being applied, e.g., when statutes that 
permit usury are pronounced void. 

259. See e.g. Thom. Aquin. 1. c. q. 95, a. 2 and 4 : the lex Nature of 
humana carries into detail the principia legis naturalis, partly as ius q^^^^ 
gentium by way of mere conclusiones, partly as ius civile by way of 

deter minationes. See also ib. 11. 2, q. 57, a. 3. Aegid. Rom. in. c. 2, 
c. 25 and c. 29 : si dicitur legem aliquam positivam esse supra 
principantem, hoc non est ut positiva, sed ut in ea reservatur virtus 
iuris naturalis. Lup. Bebenb. c. 15, p. 401. Ockham, Dial. in. tr, 
2, L 2, c. 28 ; ths ius gentium, in accordance with which the highest 
power is subject to the common weal, ' non est imperatorum vel 
regum per institutionem, sed solum per approbationem et observa- 
tionem.' Baldus, I. Feud, i § 3, nr. 2. Hieronymus de Tortis, Con- 
silium for Florence, nr. 25 : Papa et imperator non sunt supra ius 
gentium; therefore (nr. 20 — 32) a papal sentence, if not preceded by 
citation, is null. 

260. Thus Thom, Aquin. I. c. q. 94, a. 4 — 6, distinguishes the Principles 
prima principia of the lex naturalis, which are everywhere identical, gecondary 
immutable, ineradicable, and the praecepta secundaria of the same Rules of 
lex which are mutable and, in consequence of the depravity of jj^jy^g, 
human reason, 'in aliquo' destructible. Generally it is said that 

the ius naturale is immutable and can never be abrogated {tolli) by 
the ius civile ; but that derogation from it ' quoad quid ' is possible, 
and that 'ex causa' additions to and detractions from it can be made. 
See Lup. Bebenb. c. 15, p. 401. Ockham, Dial. in. tr. 2, 1. 2, c. 24. 
Gloss on Sachsensp. i. a. 55. Anton. Resell, iv. c. 7: the 'ius 
naturale divinum' is wholly unalterable; on the other hand, the 
'ius naturale homini commune cum animalibus' cannot indeed be 
abrogated by the law-giver, but can ' ex causa ' be interpreted and 
confined. — This limitation was unavoidable, for, according to 
general opinion, the very existence of lordship and ownership implied 
a breach of the pure Law of Nature, and even Thomas Aquinas, 
Sum. Theol. n. 2, q. 66, a. 2, was of opinion that ' proprietas possessi- 
onum non est contra ius naturale, sed iuri naturali superadditur per 
adinventionem rationis humanae.' Compare i. q. 96, a. i — 4 ; and 
K. Summenhard, Tr. i. q. 8 — 11, who speaks at length. 

261. Anton. Ros. iv. c. 2 — 6 says that, though John de Lignano Positive 
denies this, the legists are all agreed that though the ius divinum notis&t 



:76 Political Theories of the Middle Age. 



Gentium. 



the Law cannot be abrogated {tolli) it can be distinguished, limited and 

of God. restrained in proper cases, and that additions can be made to it j 

but this holds good only of such ius divinum as is not de necessitate. 

Comp. Ockham, Dial. ill. tr. 2, 1. 2, c. 24. Such limitations become 

all the more necessary when men are beginning to regard Positive 

Canon Law as ius divinum. 

Primeval 262. Very usual is a distinction between the 'ius gentium 

Secondary primaevum ' which has existed ever since men were in their original 

Ius condition and the 'ius gentium secundarium' which is of later 

growth. According to Anton. Rosell. iv. c 7, the law-giver can not 

abrogate, though he may interpret, the former, while the latter he 

may abrogate ' ex causa.' 

Mutability 263. Thom. Aquin. Sum. Theol. n. I, q. 90, a. 2 and 3, q. 91, 

of Positive ^^ ^^ q^ ^^^ ^^ 2^ q^ 96, a, 5 : but he maintains that a law has a vis 

directiva for the legislator who made it. Also q. 97, a. i — 4. Aegid. 

Rom. De reg. princ. ill. 2, c. 24, 26 — 28, 31 : already we see here 

a comparison between law and language; like language, the lex 

positiva varies according to 'consuetudo, tempus, patria et mores 

illius gentis,' Mars. Pat. i. c. 12 — 13 : a quite modern definition of 

a law as the expressly declared will of a sovereign community. Patria 

Sen. De inst. reip. i. 5. 

The 264. Thom. Aquin. 1. c. q. 90, a. 3, q. 97, a. 3 ; also Comm. ad 

PosWve" ^oli*^- P- 477. 491. 499. 518. Aeg. Rom. in. 2, c. 29 : 'positiva lex 

Law. est infra principantem sicut lex naturalis est supra' ; the Prince stands 

in the middle between Natural Law and Positive ; the latter receives 

its audoritas from him and he must adapt it to the particular case. 

Ptol. Luc. II. c. 8, III. c. 8 and IV. c. i : the essential difference 

between the princifatus regalis and the principatus politicus lies in 

this, that the latter is a responsible government according to the laws, 

while in the former the lex is ' in pectore regentis,' wherefore he can 

at any time produce as law from this living fount whatever seems 

expedient to him. Engelb. Volk. i. c. 10 — 11: the rex as lex 

animata ; and such a lex, since it can suit itself to the concrete case, 

is better than a lex inanimata. Joh. Saresb. iv. c 2. Ockham, 

Dial. III. tr. i, 1. 2, c. 6. Petr. de Andlo, i. c. 8. 

Potestas 265. As to the Pope, see Boniface VIII. in c r in Sexto i, 2 

s futa^ (qui iura omnia in scrinio pectoris censetur habere); Aug. Triumph. 

I. q. 22, a. I ; Alv. Pel. i. a. 58; Laelius in Gold. 11. p. 1595 ff.; 

Aen. Sylv. a. 1457 (Voigt, II. p. 240 ff.); Nic. Cus. after his change 

of opinion (Op. 825 ff.). Then as to the Emperor, see the doctrine 

of all civilians ; the theories of the Hohenstaufen ; Frederick I. in 

Otto Fris. III. 16 and iv. 4; Wezel, 1. c; Ep. Freder. II. in ann. 



Notes. 177 

1244 and 1245 in Huillard, Hist. dipl. Frid. 11. vol. vi. pp. 217, 258, 
and Pet. de Vin. Ep. 11. c. 8 (quamquam enim Serenitati nostrae... 
subiaceat omne quod volumus etc.); iii. c. 9, v. c. i ff.; Hofler, 
p. 70 ff. ; Ficker, 11. pp. 495, 539 fF., 554 ff.; Gloss on Sachsensp. i, 
a. I, III. a. 52 — 54, 64, Lehnrecht, a. 4; the summary in Ockham, 
Dial. III. tr. 2, 1. 2, c. 26 and tr. i, 1. 2, c. 6; Aen. Sylv. praef. and 
c. 19 — 21 ; Petr. de Andlo, 11. c. 8 (but how does this agree with the 
doctrine, 11. c 10, that the Emperor can be tried by the Palsgrave?). 

266. Comp. Thorn. Aq., Ptol. Luc, Engelb. Volk., Ockham, Only in a 
Petr. de Andlo, as above in Note 264. Aegid. Rom. iii. 2, c. 2 : it j^Xe 

is so in the Italian towns, where despite the existence of a Lord Ruler 
{dominus) or Podesta {potestas), ' totus populus magis dominatur,' Law! 
since the People makes statutes 'quae non licet dominum transgredi.' 
Pat Sen. De inst. reip. i. 5 (lex tantum dominatur) and in. i (the 
Magistrates rule over the People and the Laws over the Magistrates). 

267. See above Notes 159, 166, 169—71, 186 — 7, 200. Most The Ruler 
decisively Mars. Patav. i. c. 7—". M— iS and 18; with him the |^^^|'^'™>^''g 
'legislator' is in all cases the People, and the 'principans' is bound by Laws, 
the 'forma sibi tradita a legislatore.' Nicol. Cus. 11. c. 9 — 10 and 

20, in. praef. and c. 41 : all the binding force of the laws rests on 
the will of the whole community; the Pope is bound by the 
'canones,' the Emperor by the ' leges imperiales,' and, the laws are 
to allow for governmental and judicial acts a no wider field of 
activity than is absolutely necessary. Gregor. Heimb. 11. p. 1604 ff. 
Comp. Ockham, Dial. iii. tr. i, 1. 2, c. 6 : he remarks that perhaps 
in the whole world there is no instance of a regal form of government 
in the sense of a lordship unrestrained by laws, and that such a form 
would not deserve approbation except in the case, never found in 
practice, of an absolutely virtuous ruler. With this Aquinas agrees in 
so far that he prefers a monarchy limited by law. — Naturally those 
who advocated the supremacy of the laws appealed at this point to 
the 'lex digna.' In that text their opponents saw no more than that 
a purely voluntary observance of the laws on the part of the Princeps 
was promised by him as a praiseworthy practice. [This famous text 
(1. 4, Cod. I, 14) runs thus : Digna vox maiestate regnantis legibus 
aUigatum se principem profiteri.] 

268. In particular Mars. Pat. i. C. 11, 14, iS and 18 and Nic. J^^^^^ 
Cus. develop modern thoughts at this point. It is to be observed, sta^^idee.- 
however, that all the writers mentioned in Note 266 suppose that in 
a Republic there will be a separation of legislative from executive 
power, such as they do not allow in a Monarchy, and thereby they 
make this separation the distinguishing trait of a Republic. [The 

M. " 



Domain. 



1 78 Political Theories of the Middle Age. 

translator of these pages believes that in German controversy the 
common contrast to the Rechtsstaat has been the Beamtenstaat. 
Perhaps the nearest English equivalent for the former term would be 
the Reign of Law. But not all theorists would allow that the Reign 
of Law exists in England where the State or Crown cannot be made 
to answer in Court for its wrongful acts.] 
Popular 269. In relation to the Assembly of the People, this comes out 

Assem- rs\os\. plainly in the doctrine of Marsilius. In relation to the General 

blies above ^ ■' 

the Laws. Council of the Church the freedom from the restraints of Positive 
(canon) Law comes out in the doctrine of Epieikia which finds 
its clearest expression in Henr. de Langenstein, Cons. pac. c. 15, 
Randuf, De mod. un. c. 5 (Gerson, Op. 11. p. 166) and in particular 
Gerson, De unit. eccl. (ib. p. 115, also p. 241 and 276). 
Omnia 270. See the statement and refutation of this doctrine in Georg 

rsseTn'telU- Meyer, Das Recht der Expropriation, Leipz. 1868, p. 86 £F. 
guntur. 271. See Accursius in Gl. on 1. 3, Cod. 7, 37, v. omnia principis 

Eminent and 1. 2, Dig. de rer. div. v. littora (the Princeps has iurisdktio vel 
protectio not proprietas). Jac. Aren. Dig. prooem. nr. i — 7. And. 
Is. II. Feud. 40, nr. 27 — 29. Bart. Const, i. Dig. pr. nr. 3; 1. 4, Dig. 
50, 9, nr. 12; 1. 6, Dig. 50, 12: throughout a distinction is maintained 
between 'dominium mundi ratione iurisdictionis et gubernationis' and 
• dominium ratione proprietatis.' Baldus, 1. 2, Dig. de rer. div., Const. 
I. Dig. pr, nr. 10 — 11 : a double 'dominium' in 'singulae res,' but 
'diversa ratione': ius publicum Caesaris, privatum privatarum perso- 
narum. Baldus, 11. Feud. 51, pr. nr. i — 4: territorial lordship and 
ownership distinguished in the case of a city that has been given away 
or has subjected itself. See also Alv. Pel. 11. a. 15 (administratia 
contrasted with dominium) and a. 57 and 63 (Christ had no dominium 
particulare, but he had dominium generale). Ockham, Dial. iii. tr. 2, 
1. 2, c. 21 — 25, discusses all opinions at some length. He rejects 
both that which asserts and that which denies that the Emperor is 
•dominus omnium temporahum,' and teaches the mediating doctrine 
of a ' dominium quodammodo ' vested in him by conveyance from 
the People. This is evidently the ' dominium eminens ' of later times, 
for, on the one hand, it is a ' dominium,' though ' minus pingue,' and 
yet is compatible with the ownership of the ' res privatorum' by private 
individuals and with the ownership of the 'res nullius' by the 'totum 
genus humanum.' Somn. Virid. 11. c. 23 — 30 and 366: 'dominium 
universale ' of Emperor and Pope contrasted with ' dominium appro- 
priatius et specialius ' of individuals. Ant. Ros. i. c. 70. Petr. de 
Andlo, II. c. 8. Almain, Expos, ad q. i. c. 6, and 11. c. 2. Decius, 
Cons. 538, nr. 8 — 1 1 : in the case of every City, as well as in the 
case of the Emperor, we must distinguish Murisdictio et imperium' 



Notes. 1 79 

over the ' districtus et territorium,' which is a ' superioritas coerci- 
tionis,' from 'proprietas et dominium ' j for 'proprietas et imperium 
nulla societate coniunguntur.' 

272. See the work of Georg Meyer, as above in Note 270. The Right 
[Dr Gierke remarks that his own notes on this subject, which had priation? 
already appeared in his tract on Althusius, are supplemental to the 
learning collected by Meyer.] 

273. Accursius in Gl. on 1. 3, Dig. 1, 14, v. multo magis and NoExpro- 
other passages in G. Meyer p. 88; Gloss. 'Ord. on c. i, D. 22, v. ^"^0°° 
iniustitiam; Jac. Arena, Dig. prooem. nr. i — 7; And. Isern. 11. Just 
Feud. 40, nr. 27 — 29; Host. Summa de rescript, nr. 11 ff.j Oldradus, absolute 
Cons. 224 and 257; Bart. 1. 4, Dig. 50, 9, 1. 6, Dig. 50, 12, 1. 6, Rule of 
Cod. I, 22 and Const. I. Dig. pr. nr. 4 — 6 (neither rescribendo nor 

yet legem condendo); Raphael Fulgosius, Cons. 6, nr. 46 — 47, Cons. 
21, nr. 12 and 28; PauL Castr. 1. 23, Dig. 41, 2, 1. 6, Cod. i, 22, 
Const 1. c. 229; Jason, 1. 3, Dig. 1, 14, nr. 24 — 34 and Const, in. 
c. 86, nr. 14; Anton. Butr. c. 6, X. i, 2, nr. 20 — 22 ; Panorm. eod. 
c. nr. 6; Bologninus, Cons. 58; Alex. Tart. Cons. 11. a 190 (esp. 
nr. 13) and c. 226, nr. 18; Franc. Curtius sen. Cons. 20, 49, 50, 60; 
Christof. de Castellione, Cons. 8, nr. 16 — 18; Joh. Crottus, Cons. 

II. c. 156, nr. 28 — 44; Ant. Ros. iv. c. 8 and 10. Ockham, Dial. 

III. tr. 2, 1. 2, c. 23 — 5 mentions as an outcome of the 'domi- 
nium quodammodo' which he allows to the Emperor, a right to 
quash or appropriate to himself or transfer private ownership, and to 
forbid the occupation of 'res nuUius' ; but such acts as these are not 
to be done 'ad libitum ' but only ' ex causa et pro communi utilitate' 
in so far as general utility is to be preferred to 'privata utilitas.' 
And at the same time it is Ockham who most emphatically teaches 
(ib. c. 27) that this is not merely a limit set to the power of the 
Monarch but a limit set to the power of the State itself; for, accord- 
ing to him, the limitation of imperial rights by the rights of individuals 
rests upon the fact that the Populus, which transferred its power to 
the Princess, had itself no unbounded power, but (in accordance with 
c. 6, X. I, 2) was entitled to invade the sphere of private rights by the 
resolutions of a majority only at the call of necessity (de necessitate). 

274. To this effect, despite a strong tendency towards abso- NoExpro- 
lutism, Jacob. Buttrig. 1. 2, Cod. i, 19; Alber. Rose. Const, i. Dig. v. wi'thout 
omnis, nr. sff. ; 1. 15, Dig. 6, i; 1. 2, Cod. i, 19; Baldus, Const, i. Just 
Dig. pr. nr. 11; 1. 7, Cod, i, 19; 1. 6, Cod. i, 22; 1. 3, Cod. 7, 37. a good 
For some intermediate opinions see Felinus Sandaeus c. 7, X. i, 2, ^neral 
nr. 26 — 45 ; Decius eod. c. nr. 19 — 24 and Cons. 191, 198, 269, nr. 

4—5, 271, nr. 3, 352, nr. i, 357, nr. 3, 361, nr. 7, 250, nr. 5—6, 588, 

12 — 2 



i8o Political Theories of the Middle Age. 

606, nr. 8, 699, nr. 8; Riminald. Cons. I. c. 73. Ludov. Rom. 

Cons. 310 (a just cause necessary in case of a 'lex specialis' but not 

in case of a 'lex universalis'); Bened. Capra, Reg. 10, nr. 30 ff. 

Compen- 275. As to the fluctuations of the Glossa Ordinaria, see Meyer, 

sation for Qp_ j,jj_ p gj— 94. Decidedly in favour of compensation are Baldus, 

priated. 1. 2, Cod. 7, 13; Decius, 1. 11, Dig. de Reg. lur. and Cons. 520 

(recompensatio) ; Jason, 1. 3, Dig. i, 14 and Cons. iii. c. 92, nr. ri (si 

causa cessat debet res ilia restitui si potest) ; Paul. Castr. 1. 5 § 1 1, Dig. 

39, I, nr. 4, 1. 10, Cod. i, 2, nr. 3; Lud. Rom. Cons. 310, nr. 4; 

Bertach. Rep. v. civitas, nr. 88 and 96 ; Fel. Sand. c. 6, X. i, 2, nr. 2 

and c. 7, eod. nr. 28 — 29. Aeneas Sylvius, c. 18 (if practicable, 'ex 

publico compensandum est'); Crottus, Cons. 11. c. 156, nr. 27 (princeps 

propter favorem publicum si auferat dominium alicui, debet pretium 

solvere) nr. 28 — 29 (expropriatory acts of towns), nr. 31 (the Pope). — 

On the other side, Alber. Rose. 1. 14 § i, Dig. 8. 6. 

No Com- 276. Decius, Cons. 520: a law may take away rights 'genera- 

in case of 'iter' even 'sine compensatione privatorum'; on the other hand, if the 

General \^-^ ^pgg fj^jg ' particulariter alicui subdito' then it must be 'cum 

Expro- 
priatory recompensatione.' J ason, 1. 3, Dig. i, 14, nr. 44 ; Paris de Puteo, 

^"- De synd. p. 41, nr. 24 and Ant. Ros. iv. c. 8 and 10. 
No Com- 277. So, e.g., Aen. Sylv. c. 17 — 18 : in case 'reipublicae neces- 
Fn a Case'of ^''^^ id expostulat,' though 'aliquibus fortasse durum videbitur et 
Necessity, absurdum.' 

Propria- 278. Thus already the Glos. Oid. on 1. 2, Cod. i, 19, and 1. 6 

proM^ed "^'Cod. I, 22; also Hostiensis, Jac. de Arena, Oldradus, Fulgosius, 
from the Iserna, Bartolus, Paul. Castrensis, Jason, Ockham, as in Note 273 ; 
tium. ^" ^^^°' '^"' ^'* l^ss protection for property, Rosciate, Baldus, Decius 
and Bened. Capra, as in Note 274. See also Joh. Paris, c. 7, where 
private ownership is placed outside the sphere of the Public Power, 
temporal and spiritual, by the more specific argument that such owner- 
ship originates in the labour of an individual and thus is a right that 
arises without any relation to the connexion between men or to the 
existence of a society with a common head (commune caput). Paris 
de Puteo, De synd. p. 41, nr. 22 — 24; Somn. Virid. i. c. 156—161 ; 
Bertach. v. plenitudo potestatis; Pet. de Andlo, 11. c. 8; Gerson, iv. 
p. 598; Ant. Ros. IV. c. 8 and 10 (the source of private property is ius 
gentium, but ius gentium secundarium, and so it is destructible). — 
When the objection was raised that it was only Property as an 
institution that existed ex iure gentium, and that this was not infringed 
if particular owners were robbed, the reply was that the distinctio 
dominorum and the permanent establishment of certain modes of 
acquisition were attributable to the ius gentium. 



Notes. i8i 

279. Baldus I. Feud. 7 (God subjected the laws, but not con- Sacred- 
tracts, to the Emperor); Ludov. Rom. Cons. 352, nr. 15— 25 J contracts 
Christof. Castell. Cons. 8, nr. 25 ; Jason, Cons. i. c. i and c. 56, 11. c. made by 
223, nr. 16 ff. and 226 ; Decius, Cons. 184 nr. 2, 286 nr. 5, 292 nr. 8, ' ^ '*'*' 
404 nr. 8 (for 'Deus ipse ex promissione obligatur'), 528 nr. 6, 689 

nr. 7 — 27. But, once more, ' ex iusta causa ' breach of contract is 
permissible: Jason, Cons. i. c. i, nr. 12 and 29 ff., 11. 226, nr. 43, 
1. 3 Dig. I, 14, nr. 34; Bened. Capra, Reg. 10, nr. 43 ff.; Ant. Ros. 
IV. c. 14. Therefore the old moot question, whether a city can 
revoke the freedom from taxation which it has promised to a settler, 
is generally answered in the negative, on the ground that such an act 
would be a breach of contract ; but exceptions are allowed ' ex causa,' 
e.g., when there is the punishment of a delict, or if the city's existence 
is at stake; Jason, Cons. i. c. i, nr. 21 — 30; Ant. Ros. iv. c. 15. 

280. Thus the Gloss. Ord. on 1. 2 Cod. i, 19 and 1. i Cod. i, ^'8^'' 

22 holds that private rights are suspended if the ius civile comes into on Positive 
collision with them, and that they are abolished by a simple rescript, Law are at 
if the intent to abolish them be clearly expressed ; but many, it is of the 
added, hold that in the case last mentioned the rescript to be effectual State. 
must contain the clause ' non obstante lege.' Then the last of these 
opinions is developed by Hostiensis, Paulus Castrensis, Jason and 
others. Bartolus allows that private rights arising ex iure civili can 
be abolished ' without cause,' but only by legislation, and not (unless 
the damage be inconsiderable) by way of rescript. On the other 
hand, Baldus, Decius and others hold that such rights can be with- 
drawn unconditionally and in every form. Innocent IV., Alb. Ros- 
ciate and others think that the State cannot take away the right of 
ownership (dominium ipsum), but can make it illusory by taking 
away the rights of action which flow merely from Positive Law. 
Anton. Ros. iii. c. 14 and Bened. Capra, Reg. 10, nr. 43 — 52 discuss 
at length the withdrawal of ' iura mere positiva.' 

281. Jason, Cons. i. c. 1, nr. 20, c. 56, nr. 1, 2, 7, 8, 21, 11. Revoca- 
c. 226, nr. 43 — 49 : 'privileges' granted gratuitously may be revoked <"p"i°i. 
'sine causa'; those granted for value 'ex causa.' Felinus Sand. c. 7 leges.' 
X. I. 2, nr.' 48-=— 52 : for the princeps can 'ius auferre, cuius ipse fuit 
causa ut acquireretur.' Bened. Capra, 1. c, excepts the case of 'non 
subiecti.' Aen. Sylv. c. 1 5 : privileges may be revoked if they be 
reipublicae damnosa. — In the Disput. inter mil. et cler. p. 686, and 

the Somnium Viridarii i. c. 33—34 the knight already applies this 
doctrine in such wise that the State 'pro ardua necessitate reipublicae 
vel utiUtate manifesta' can withdraw all ecclesiastical privileges, 
since every privilege must be deemed to comprise a clause to the 
effect that it is not to impair the ' salus publica.' 



I 



82 Political Theories of the Middle Age. 



Nullity 
of the 



282. See above Notes 2, 87, 125 — 30; Dante, Mon. I. c. 3 ; 
Ockham, Dial. in. tr. 2, I. 2, c. 28. 

283. Already in the Gloss, on Auth. Coll. i. tit. 6, prooem. v. 

conferens, there is a suggestion of the arguments which the legists 
'Donation ■' ' °° , ,.,it-...- r<-. 

of Con- afterwards developed by way of proof that the Donation 01 Constan- 

stantine.' jj^jg ^^g ^qJ^j^ because the imperial power is inalienable and no 
' expropriatio territorii, dignitatis vel iurisdictionis ' is possible. For 
full discussions of this matter, see Bartol. on prooem. Dig. nr. 13 — 14 
and Baldus eod. nr. 36—57, and prooem. Feud. nr. 32 — 33. Com- 
pare Dante, Mon. in. c. 10 : 'nemini licet ea facere per ofBcium sibi 
deputatum quae sunt contra illud officium'j the Emperor cannot 
destroy the Empire, which exists before he exists, and whence he 
draws his imperial rights (ab eo recipiat esse quod est) ; the seamless 
garment would be rent ; in every grant or infeudation by the Emperor 
there is a reservation of ' superius illud dominium cuius unitas divisio- 
nem non patitur.' Lup. Beb. c. 13, p. 391 — 3. Quaestio in utram- 
que, p. 106, ad 14. Ockham, Octo q. I. c. 12, iii. c. 9, viii. c. i. 
Dial. III. tr. 2, 1. I, c. 27. Gloss on Sachsensp. iii. a. 63. Damasus, 
Broc. M. III. br. 19. Greg. Heimb. i, p. 560. Anton. Ros. i. a 64 
— 70 ('officium publicum' J 'imperium indivisibile et inalienabile' ; 
'corpus mysticum'; 'ecclesia non capax' ; 'populus Romanus 
liber, non in commercio'). — These arguments are not attacked by 
the other party. The defenders of the Donation are for making an 
exceptional case of it. The gift was really made to God and there- 
fore was not subject to the ordinary restrictions. So Bartolus, 
1. c, whose chief reason, however, is that he is teaching in the papal 
territory : so also Baldus and others. In particular, however, the 
papal party develop the doctrine that the Pope was already ' verus 
dominus iure divino,' and that therefore the donation bore the 
character of a ' restitutio.' So Innocent IV., Ptol. Luc. in. c. 16 ; 
Alv. Pel I. a. 13 E, 43 D — E, 24 s, 56 m, 59 h, ii. a. 29; Aug. 
Triumph, i. q. i, a. i, 11. q. 36, a. 3, 38, a. i, 43, a. 1—3 ; comp. 
And. Isern. i. Feud, i, nr. 10 and Petr. de Andlo i. c. 11, and 11. 
c. 9. — The opinion that the whole donation was a fable had never 
quite died out in the days before the forgery was exposed by Nic. 
Cusanus (ni. c. 2) and Laur. Valla (ann. 1439 in Schard, p. 734 — 80). 
This is shewn by the bold words of Wezel, ann. 1152, in Jaff(^, Mon. 
Corb. p. 542, and the mention of this opinion by Lup. Bebenb. 
c. 13. 

284. See above, Note 58. In particular Lupoid von Bebenburg 
(c. 15, pp. 398 — 401) in this context sharply formulates the general 
proposition that the 'imperium,' since it is 'ob publicum usum 



Inalien- 
ability of 
Public 
Power. 



Notes. 183 

assignatum,' stands 'extra commercium' like any other 'res in 
publico usu.' 

285. Among the jurists and publicists we may see an always Nullity 

more definite apprehension of the rule that every contract which "e^jjing (g 

purports to sacrifice an essential right of the State is void, and that diminish 

• • • . . the State's 

no title can give protection against that claim to submission which po^gf_ 

flows from the very idea of State-Power. (Compare the passages 

cited in Note 283.) Therefore contracts made by the Princeps are 

not binding on his successor if thereby ' monarchia regni et honor 

coronae diminui possit,' or 'magna diminutio iurisdictionis ' would 

ensue, or ' regalia status ' would be abandoned. See Bart. 1. 3, § 2, 

Dig. 43, 23, nr. 5; Bald. i. Cons. 271, nr. 3; Joh. Paris, c. 22; 

Somn. Virid. 11. c. 293; Picus a Monte Pico, i. Feud. 7, nr. 10 j 

Jason, Cons. iii. c. 10, nr. 6 — 9, 16, 24 — 25 ; Crottus, Cons. 11. 

c. 223, nr. II and 21 — 22; Bertach. v. successor in regno. So a 

contract by a city purporting to exempt a man from taxation might 

be valid if entered into with a new settler, but would be invalid if 

made with one who was 'civis iam subditus': Bart. 1. 2, Dig. 50, 6, 

nr. 2 and 6 ; to the contrary, Gal. Marg. c. 30, nr. 1 1 and Dur. Spec. 

IV. 3, de cens. § 2, nr. 12. 

286. See Notes 283 — 5. Dante, iii. c. 7 : Emperor or Pope, Inalien- 
like God, is powerless in one point, namely, 'quod sibi similem soverejg,,. 
creare non potest: auctoritas principalis non est principis nisi ad ty- 
usum, quia nullus princeps seipsum autorizare potest.' Aen. Sylv. 

c. II — 12. 

287. Most definitely Nicol. Cus. (above, Note 171)5 but also An inde- 

,, t, ,■ \ J ,x . J structible 

Mars. Pat. i. c. 12 (in the words *nec esse possunt ). As regards Sove- 

the Church, see above. Notes 189 and 200. According to Ockham, reignty 

. , , of the 

Dial. III. tr. I, 1. I, c. 29, there were some who held that a people, 
renunciation of the lordship of the world by the ' Populus Romanus ' 
was impossible and would not bind the ' populus sequens ' ; but this 
opinion is refuted, reference being made to the merely 'positive' 
character of the Romans' right to preeminence, and also to the 
doctrine about the binding force of resolutions passed by a cor- 
poration. 

288. Bart. Ruhr. C. 10, i, nr. 3 — 5 and 9 — 10. The idea of Essential 

the Fiscus includes only ' quicquid ad commodum pecuniarium gf f^e 

imperii pertinet : alia vero, quae ad iurisdictionem et honores im- State and 

peru pertinent et non commodum pecuniarium et bursale, contmentur acquired 

nomine reipublicae et non fisci.' Baldus, 11. Feud. 5 1, pr. nr. 4 : a Right? of 
,,,,,.,, ,..,.. the Fisc. 

city which subjects itself to lordship thereby conveys the mrisdtctto 

over the town mills, for this the city had possessed ' sicut ipsa 



1 84 Political Theories of the Middle Age. 

civitas,' but it does not convey the ownership of the mills, for this it 
had 'iure privato.' Compare Bald. Ruhr. C. lo, nr. ir, Cons. 
I. c. 271, nr. 2, but especially 1. i, Cod. 4, 39, nr. 4, and above all 

1. s, Cod. 7, 53, nr. 13: a distinction between 'res universitatis in 
commercio ' and ' extra commercium ' : in things of the latter class — 
and to this class belong all public rights — ' tenuta capi non potest ' 
[a tenure cannot be created] ; therefore, e.g., the right to impose a 
tax ' cum sit publicum auctoritate et utilitate et sit meri imperii ' is 
inalienable, and can never 'private concedi vel in tenutam dari'; 
only the commoditas [profit] of this right can be sold, given, let to 
farm, in such wise that the 'civitas ipsa' will still 'impose' the tax, 
though the buyer or lessee ' exacts ' it ; also the city can appoint for 
itself a capttaneus or conservator, who, as its proctor, will impose 
taxes and exercise other rights of ownership; 'et sub hoc colore 
perdunt civitates suas libertates, quae de decreto vendi non possunt.' 
See further the separation of the sovereign rights and fiscal rights of 
the Empire in Ockham, Dial. iii. tr. 2, 1. 2, c. 23 : also the dis- 
tinction between the commodum pecuniarium, which is involved in 
the idea of the fiscus, and the regalia which are involved in the idea 
of the respublica, in Vocab. luris, v. fiscus, in Paul. Castr. 1. 4, Cod. 

2, 54, Marcus, Dec. i. q. 338, nr. 8 — 10 and 17, Martinus Laudensis, 
De fisco, q. 141. 

Gradual 289. See the passages cited above in Notes 284, 285 and 288. — 

apprehen- ^ certain, but a very distant, influence was exercised at this point by 
sion of the . . •' ' . v 1 

Distinc- the distmctions drawn by the Philosophers between the various sorts 

tion be- Qf iustitia. So, in particular, the Thomistic distinction between 

tween lus / 

Publicum (i) the iustitia particularis, which is (a) commutative, regulating the 

Prfvatum relationships of man to man, or {p) distributive, dividing among 
individuals what is common, and (2) the iustitia generalis s. legalis, 
which limits the rights of individuals in accordance with the demands 
of the bonum commune. See Thom. Aquin. Sum. Theol. 11. 2, 
q. 58 ff. ; also n. i, q. 105, a. 2. Also Aegid. Rom. above, 
Note 83. 

Nullity 290- So, to some extent, all the writers mentioned in Note 257. 

of the And so in connexion with attacks on vested rights made without 

reign's i^tsta causa, all the authors named in Note 273 : see especially Gloss. 

uiey cL ^'^^ °° '• *' ^^'^^ '' ^9 and 1. 6, Cod. i, 22, Host. 1, c., Jacob. 

flict with Aren. 1. c. (for the Emperor, if he orders anything contrary to law, 

Law"^*^ ' *1"^^' '^°" ^^'^'' "' imperator '), Raphael Fulgosius 1. c. (the opinion 
that the Emperor, though he does unright, does a valid act, would 
practically subject everything to arbitrary power). Comp. Bened. 
Capra, Reg. 10, nr. 35—42. — Then Bartolus draws, and others 



Notes. 185 

accept, the distinction between invasions of right (1) legem con- 
dendo, (2) iudicando, (3) rescribendo, and he is inclined to allow 
greater force to an act of legislation than to acts of other kinds ; 
still it is just he who expressly declares that in conflict with Natural 
Right, strictly so-called, even laws are void. — See also above, Note 
259 in fine. 

291. See above. Notes 129 — 130 and 134. 

292. This is the core of the doctrine that the lack of a iusta Tribunals 
causa for any invasion of vested rights by the Sovereign can be SS^'S^^ 
supplied by the deliberateness {ex certa sciential) with which he Acts of the 
exercises his plenitudo potestatis : deliberateness which can be mani- ^°J'*'^^'?" 
fasted by such a clause as ' lege non obstante.' This doctrine, which liberately. 
first appears in a rough form in Durantis, Speculum, i. tit. interd. leg. 

et sedi Apost. reserv. nr. 89 (cf. G. Meyer, op. cit. p. loi), is attacked 
by the jurists cited in our Note 273 (though Jason in Cons. 11. c. 233, 
c. 236, n. 12 — 13 and iv. c. 107, nr. 4, makes large concessions) and 
is defended, though to a varying degree, by the jurists mentioned 
in our Note 274. See in particular Alber. Rose. 1. c. where prac- 
tically all difference between Positive and Natural Right disappears 
and the same formal omnipotence is claimed both for rescripts and 
for acts of legislation. Baldus, 1. c. ; Felin. Sand. 1. c. nr. 60 — 66 
(despite nr. 45 — 52); Riminald. Cons. i. c. 73; Capra, Reg. 10, 
nr. 48 — 52, 56 — 59; Decius, c. 7, X. i, 2, nr. 27 — 28, Cons. 198, 
nr. 7, 269, nr. 4 — 5, 271, nr. 3, 640, nr. 6 — 7, and esp. 588, nr. i — 
14; also Aen. Sylv. c. 16 — 17. — The rejection of the right of active 
resistance is a logical consequence; see above. Note 127. 

293. This is made externally visible by the treatment as two dif- Natural 
ferent subjects of (i) the ' lex naturalis et divina,' which is binding on reduced"to 
rulers as on others, but like all other ' leges ' is concerned with the level 
'actus exteriores,' and (2) that Instruction for the Virtuous Prince, in EtMcsf 
the development of which medieval publicists expend much of their 

pains. 

294. Already John of Salisbury, iv. c. i, 2 and 4, speaks of a Coercive 
'/<« iustitiae,' to which the Ruler remains subject, since the 'aequitas directive 
et iustitia,' of which the ' lex ' is the ' interpres,' should govern his Force of 
will. Then in Aquinas there comes to the front the formula that the * ' 
Prince, in so far as the rules of law have no ' vis coactiva ' against 

him, is still bound by them 'quantum ad vim directivam'; comp. 
Sura. Theol. 11. i, q. 96, a. 5, also q. 93, a. 3. With Thomas himself 
it is only the ' lex humana ' which is reduced to the exercise of a 
merely directive force over the Prince ; in this province unrighteous 
laws (e.g. those which proceed 'ultra sibi commissam potestatem,' 



[86 Political Theories of the Middle Age. 



which impose unjust taxes and unjust divisions of burdens, or which 

are 'contra commune bonum') have formally the force of laws, 

though they are not binding 'in foro conscientiae': comp. ib. q. 90, 

a. 2, and q. 96, a. 1—4. Similarly Joh. Friburg. c. II. t. 5, q. 204. 

On the other hand, those who unconditionally maintain the formal 

sovereignty of the legislator and in so doing refuse even to Natural 

Law any ' coactive force ' against him, are unanimous in allowing to 

it at least a ' directive force.' See also Ptol. Luc. De reg. princ. iv. 

c. I. Ockham, Dial. ill. tr. 2, 1. 2, c. 28. Gerson, iv. p. 593 ff. 

esp. 601. 

Legal 295. See above, Notes 127—8. The limit to the duty of 

Limit to obedience is steadily represented as a matter for Jurisprudence, and 

of Obe- is deduced from the nature of lex or ius. 

<J'^°<=«- 296. See, e.g., Gloss. Ord. on 1. 2, Cod. i, 19, and 1. i, Cod. i, 

Acts"of 22 j Baldus, as cited in Note 274; Jason, Cons. 11. c. 233, nr. 9, iii. 
Sovereign- c. 24, nr. 21, IV. c. 166, nr. 9; Franc. Aret. Cons. 15, nr. 9; Franc, 
inter- ^ Curt. sen. Cons. 20, 49, 50; Domin. Gem. Cons. 99, nr. 7 — 8, 
pretedinto (-_ 104, nr. 4; Decius, Cons. 292, nr. 3 and 9, 373 nr. 10, 606 nr. 17. 
neS. " ' In case of need men were ready to feign that the Sovereign's act had 

been induced by subreptio, circumventio, etc 

Discharge 297. For the benefit of the omnipotent Council, Randuf teaches 

°f *« . that, if the weal of the Church requires it, the Council may disregard 

from "the" the Moral Law: De mod. un. c. 6, 16, 20 and 22 (Gerson, Op. 11. 

Moral pp lyo^ igj, 188, 190). Gerson (iv. p. 671) protests against this: 

the Law of Morality must not be transgressed even for the sake of 

the common wealj perjury should not be committed even to save 

the whole people. 

298. In my book 'Joh. Althusius und die Entwicklung der 
naturrechtlichen Staatstheorien' I have submitted just this side of the 
medieval doctrine to closer inspection, and have traced the later 
development of those germs that were planted in the Middle Age. 

299. See above, Notes 16, 137 and 260 in fine. 

300. See above. Notes 16, 138 — 9, 142 — 5. 

301. See above. Notes 140 — i. 

Natural 302. Aegid. Rom. De reg. princ. in. i, c. 6, supposes three 

^fTiT''' possible origins of a State : the first is the purely natural way of a 
State. gradual growth from out the Family j the second is the ' concordia 
constituentium civitatem vel regnum' and this is partially natural, 
owing to a 'naturalis impetus' which impels to this concord; the 
third is the way of mere violence, compulsion and conquest. Marsil. 
Pat. I. c. 3 combines the thought of natural increase and differentia- 
tion with the notion of a creative act of human activity. 



Notes. 187 

363. Already Aquinas, however great may be the stress that he Rational 
lays on man's nature as ' animal politicum et sociale in multitudine of"he" 
vivens ' (De rag. princ. i, c. i and Sum. Theol, i. q. 96, a. 4), makes State. 
mention of the 'ratio constituens civitatem' (above, Note 98). 
Comp. Ptol. Luc. HI. c. 9, and iv. c. 2 — 3. Aegid. Rom. iii. 2, 
c. 32 says expressly: 'sciendum est quod civitas sit aliquo modb 
quid naturale, eo quod naturalem habemus impetum ad civitatem 
constituendam ; non tamen efficitur nee perficitur civitas nisi ex opera 
et industria hominum' Comp. iii. i, c. i (opus humanum) with 
c. 3 — 5 (homo est naturaliter animal civile et civitas aliquid secundum 
naturam). Engelb. Volk. De ortu, c. i : ratio imitata naturam, 
Joh. Paris, c. 1. Gerson, iv. p. 648. Nic. Cus. iii. praef. Aen. 
Sylv. c. I, 2 and 4 : human reason, ' sive docente natura sive Deo 
volente, totius naturae magistro,' invented and instituted the State, 
Lordship, Empire. Already Patric. Sen. De reip. inst. i. 3 speaks 
of all the manifestations of social life — living in company, making 
strongholds, language, the arts, the laws, the State — as 'inventions' 
to which mankind ' duce naturae ' came by giving thought to general 
utility (de communi utilitate cogitare). According to iii. 5, the State 
may be so erected that it cannot perish, 

304. The ecclesiastical theory that the constitutive principle of The State 
the State was violence and compulsion (see above, Note 16) was still ySe^ ce 
maintained by Ptolemy of Lucca, iv. c. 3, and such an origin seemed 

at least possible to Aegidius Romanus (above; Note 302). On the 
other hand, Aquinas traces the founding of the State to the oflftce of 
the King (above. Note 98). 

305. See Mars. Pat. i. c 15 as to the 'anima universitatis vel The State 
eius valentioris partis' as the 'principium factivum' of the State j""""^*** '^5' 
(above, Note 98). And so in relation to the World Empire (above, tion. 
Note 145). 

306. Of special importance was the acceptance of Cicero's The Social 
definitions of the State as a societas. See, e.g. Thorn. Aquin. Sum. Contract. 
TheoL II. I, q. 105, a. 1, 11. 2, q. 42, a. 2 ; Vincent Bellov. vii. 

c. 6 — 7 J Dom. Gem. c. 1 7 in Sexto, i, 6, nr. 7 ; Randuf, De mod. 
un. c 7, p. 171 ; Theod. a Niem, Nemus Unionis, tr. v. p. 261. So 
also the acceptance, in c. 2 § 2 D. 8, of the words of St Augustine : 
'generale quippe pactum est societatis humanae obedire regibus.' 
The separation of the Social Contract from the Contract which 
institutes the ruler is suggested by John of Paris, c. i, and is 
effected in clear outline by Aeneas Sylvius, who treats (De ortu, c. i) 
of the grounding of a societas civilis by men who theretofore wan- 
dered wild in the woods, and then (c. 2) of the establishment of a 



[88 Political Theories of the Middle Age. 



regia potestas in consequence of the transgressions of the Social 
Contract that men were beginning to commit. See also Aegid. 
Rom, above in Note 302 ; Patric. Sen. i. 3. [The passages in 
Cicero's works referred to in this note are given by Dr Gierke 
elsewhere (D. G. R. in. p. 23). De off. i. 17, where the State 
appears among the societates. De republ. i. 25, 39 : 'populus autem 
non omnis hominum coetus quoquo modo congregatus, sed coetus 
multitudinis iuris consensu et utilitatis communione sociatus'; ib. 26, 
41; ib. 32, 49: 'lex civilis societatis vinculum, ius autem legis 
aequale; quid enim est ci vitas nisi iuris societas?*; ib. in. 31: 
' neque esset unum vinculum iuris nee consensus ac societas coetus, 
quod est populus'; ib. 33; ib. 35, 50; ib. iv. 3: 'civium beate et 
honeste vivendi societas ' ; ib. vi. 13 (Somn. Scip.) : ' concilia coetus- 
que hominum iure sociati, quae civitates appellantur.' In another 
place Dr Gierke (D. G. R. in. p. 124), discussing the influence of the 
patristic writings, remarks that certain pregnant sentences of Cicero's 
long-lost De republica were known in the Middle Age through 
Lactantius and Augustine and exercised a powerful influence. In 
yet another place (D. G. R. in. p. 125) the words 'generale quippe 
pactum est societatis humanae obedire regibus' are cited from 
August. Confess, in. 8; but it is there remarked that Augustine is 
wont to give to the State a sinful origin in violence.] 
Voluntary 307. See the derivation of the binding force of laws from a self- 
Subjec- binding of individuals, in Mars. Pat. i. c 12 (lex ilia melius observatur 

tion the . . .... . 

Ground of a quocumque civium, quam sibi quilibet imposuisse videtur;...hanc 

Obedi- quilibet sibi statuisse videtur ideoque contra illam reclamare non 

£DC6* 

habet) j in Ockham, Dial. in. tr. 2, 1. 2, c. 26 — 28 ; in Nic. Cus. 11. 

8, 10, 12 (concordantia subiectionalis eorum qui ligantur), 13 (sub- 

iectio inferiorum), in. c. 14 (per viam voluntariae subiectionis et 

consensus). Add to this the supposition that the isolated individual is 

historically prior to the community: Aen. Sylv, 1. c, and Patric. Sen. 1. c 

The terms 308. Already Ockham, Dial. in. tr. 2, 1. 2, c. 26, says that many 

of the derive the Emperor's • plenitudo potestatis ' from Original Contracts, 

of Subjec- since ' humana societas servare tenetur ad quod se obligavit ' : 'sed 

''°°' societas humana obligat se ad obediendum generaliter regibus et 

multo magis imperatori ' ; this appears from the words of Augustine 

[above, Note 306]. Ockham himself, however, opines (c. 28 in fine) 

that this pactum secured obedience only ' in his quae ad utilitatem 

communem proficiunt.' Comp. Aen. Sylv. 1. c. 

309. See Dante, i. c 3 ; Ockham, Dial. iii. tr. 2, I. 2, c. 28. 
Limitation 310. So when Dante (above, Note 6) makes the institution of 
Work of *" ' universalis pax ' the aim and object of the Empire. So when 



Notes. 189 

Engelbert of Volkersdorf (De ortu, c. 7—13) finds the object of the the State 
State in the ' felicitas regni,' and, having mentioned its components, Makten- 
finally (c. 14) sums them all up in the one idea of ' pax,' and else- ance of 
where (c. 19) simply identifies the 'ordinatio et conservatio pacis et £aw* ^""^ 
iustitiae' with the object of the State. So also when Gerson, iv. 
p, 649, does the like. And so, again, when Petrus de Andlo, 11. 
c, 16 — 18, mentions the 'cura totius reipublicae ' as the State's object, 
but, when it comes to particulars, mentions only the administration 
of justice, the preservation of the peace and the protection of 
religion. 

311. See, e.g., Thom. Aquin. De reg. princ. i. c. 14 : the object Final 

of the State is hfe according to virtue ; but the ' virtus humana ' of Causes of 

the ' multitudo,' which is to be realized by the 'regimen humanum,' church. 

is itself but means to that other-worldly purpose which the Church 

has to promote by realizing the 'virtus divina.' See also c, 7 — 15, 

and Sum. Theol. 11. i, q. 90, a. 2. On the other hand, in his 

Commentary on the Politics he simply follows Aristotle : see Op. xxi. 

pp. 307 flf., 400, 402, 424, 469, 634 flf., 678 ff. Compare Ptol. Luc. 

III. c. 3, and IV. c. 23 ; Aegid. Rom. iii. i, c. i — 2, in. 2, c, 8 and 

32; Eng. Volk. De reg. princ. 11. c. 2 — 4; Anton. Ros. i. c. 46 

and 56. 

312. Joh. Paris, a 18: since the virtuous life (vivere secundum Extension 
virtutem) is the object of the State, it is untrue ' quod potestas regalis °J *1 

sit corporalis et non spiritualis et habeat curam corporum et non Province 
animarum.' Somn. Virid. i. c. 154 — 5. Gerson, in Schwab, p. 88 ff. — i?^. , 
For the rest, even Alvarius Pelagius, i. a. 56, confesses that the Direction, 
temporal power, since its object is the ' vita virtuosa,' has to work 
upon the 'anima,' and to that extent is 'spiritualis': it works, 
however, only ' secundum naturam,' while the spiritual power works 
' secundum gratiam ' and therefore is * spiritualis ' by preeminence. 

313. Mars. Pat. i. c. 4 — 6 ascribes to the State a solicitude for Spiritual 

the ' bene vivere ' both on earth and in heaven, and therefore a -^""^ °^ 

the State. 
Widely extended care for morals and general welfare. Patric. Sen. 

De inst. reip. claims for the government the whole ' vita familiaris ' 

(allotment of land and settlement of families, lib. iv.), the 'vita 

civilis' of every citizen (lib. v.), the ordering of the Estates of men 

(lib. VI.), nay, even the duty of seeing that the citizens receive none 

but beautiful (of course they would be classical) names (lib. vi. 7, 

pp. 298—304). 

314. See Thom. Aquin. De reg. princ i. c. i ; Engelb. Volk. 
De reg. princ. i. c. 1 — 4; Dante, i. c 5 ; Alv. Pelag. i. a. 62 b; 
Joh. Paris, c. i. 



Lessons in 
the Art of 
Govern- 
ment. 

The 

Forms of 
Govern- 
ment. 



Possible 
Limitation 
of Mon- 
archy, 



Mixed 

Constltu 

tions. 



Growth 
of the 
Modern 
State. The 
Taxing 
Power. 



190 Political Theories of the Middle Age. 

315. Such lessons are given ex officio by John of Salisbury, 
Aquinas, Vincent of Beauvais, Engelbert of Volkersdorf, Aegidius 
Romanus, Patricius of Siena. 

316. See the doctrine, deriving from Aristotle, of the Forms of 
Government in Aquin. 1. c. I. c. i — 3 ; Aegid. Rom. ill. 2, c. 2 ; 
Mars. Patav. i. c. 8 — 9 (with five sub-forms of Monarchy) ; Ockham, 
Dial. III. tr. i, 1. 2, c. 6 — 8 ; Patric. Sen. De inst. reip. I. 4 ; Almain, 
Expos, ad q. 1, c. 5 and 15. See also Engelb. Volk. 1. c. i. c. 5 — 18 
who supposes four fundamental forms : democratia, aristocratia, oli- 
cratia (sic !) and Tnonarchia, each with specific principium and finis, 
and four degenerate forms, iyrannis, olicrafia (degenerate aristocratia), 
clerotis and barbaries. See also above. Notes 131, 135, 264 — 5, 
283—6. 

317. See above. Notes 269 and 287. 

318. See above, Notes 293 — 6. 

319. See above, Notes 136, 161 and 165. At this point we 
may also mention the theory that a ' consilium principis ' is necessary 
and that the law-courts should be independent : see Eng. Volk. iii. 
c. I — 45 ; Aegid. Rom. iii. c. 2, c. i ff. (the princeps to maintain, 
the consilium to contrive, the indices to apply, the populus to observe, 
the laws). 

320. See above, Note 165. Engelbert of Volkersdorf (i. & 7 — 8 
and 14 — 16) is the most independent teacher of this doctrine ; out of 
his four fundamental forms he constructs six that are doubly, four 
that are triply, and one that is simply compounded, and then of his 
fifteen forms he gives highly interesting examples from the political 
life of his time. 

321. See above, Note 268. 

322. See above, pp. 65 ff. 

323. A characteristic example is given by the doctrine of the 
right to tax. At first this is viewed as a power of Expropriation 
founded on and hmited by the good of the public [In another part 
of his work (D. G. R. iii. 389) our author has spoken of the view 
taken by the legists : taxation is a form of expropriation, and there- 
fore there should be a iusta causa for a-tax.j Thorn, Aquin. De reg. 
lud. q. 6 — 7 : the State may impose taxes for the ' communis populi 
utilitas'; but, beyond the 'soliti redditus' (accustomed revenues), 
only 'collectae' which are moderate or are necessitated by such 
emergencies as hostile attacks should be levied : if these bounds are 
exceeded, there is unrighteous extortion. Vincent. Bellov. x. c 66 — 69. 
Ptol. Luc. HI. c. 1 1 : the king, because of his duty of caring for the 
common weal, has a right of taxation, which however is limited by 



Notes. 191 

the purpose for which it exists : always therefore ' de iure naturae ' 
he may demand 'omnia necessaria ad conservationem societatis 
humanae'; but never any more. J oh. Paris, c. 7 deduces the right 
of taxation from the fact that private property needs the protection of 
the State and its tribunals, and therefore should contribute ; but it 
may be taxed only 'in casu necessitatis' and proportionately. 
Similarly Somn. Virid. i. 140 — 1 : taxes which exceed traditional 
practice can only be imposed in those cases (they are specified) in 
which the 'necessitas reipublicae' requires them; they must be 
moderate and can only be demanded if the Ruler's own means are 
insufficient ; and they must be rightly applied ; all other taxation is 
sin; the Church should punish it 'in foro conscientiae ' and, if 
possible, secure redress; and it gives the people a right to refuse 
payment and even to depose the ruler. Gerson, iv. p. 199 and 616 : 
taxes should be imposed only for the purposes of the State and 
should be equal for all. See Decius, Cons. 649, nr. 4 : the prohibi- 
tion of the imposition of new taxes does not extend to sovereign 
cities. 

324. In quite modern fashion Patric. Sen. i. 6 proclaims the Equality 
equality of all before the law (aequalitas iuris inter cives), nay, their ^^^ "*^ 
equal capacity for all offices and their equal civic duties. 

325. See the statements of civic duty, to sacrifice life and goods State and 
forthe 'salus publica '—statements influenced by classical antiquity pjJl}^^"-,,^ 

^in Aen. Sylv. c. 18, and Patric. Sen. v. i — 10. Also Thom. ofAn- 

Aquin. Summa Theol. 11. i, q. 90, a. 2 : ' unus autem homo est pars '^l"''?- 
communitatis perfectae,' therefore all private good is to be regulated 

only 'secundum ordinem ad bonum commune,' for 'omnis pars 
ordinatur ad totum ' ; ib. a. 3, so in relation to the domus ; ib. 11. 2, 
q. 58, a, S : 'omnes qui sub communitate aliqua continentur, com- 
parantur ad communitatem sicut partes ad totum; pars autem id 
quod est totius est ; unde et quodlibet bonum partis est ordinabile in 
bonum totius.' Joh. Friburg. 11. t. 5, q. 204 : duty of paying taxes 
incumbent on every one as ' pars multitudinis ' and therefore ' pars 

totius.' 

326. Marsilius in his Defensor Pacis expressly declares that the The 
Church is a State Institution and that the sacerdotium is 'pars et ^^sihan 
officium civitatis' (i. c 5-6). Sovereign in things ecclesiastical is tion of 
the 'universitas fidelium,' which, however, coincides with the 'um-gj^^^^ 
versitas civium' and in this respect, as in all other matters, is 
represented by xkit. principans whom it has instituted, so that the line 
between Spiritual and Temporal is always a Une between two classes 

of affairs and never a line between two classes of persons (11. c. 2, 7, 



Attitude 

of the 

State 

towards 

the 

Church. 

Church 
Property 
and Public 
Property. 



192 Political Theories of the Middle Age. 

14, 17, 18, 21). The State Power imposes conditions for admission 
to the sacerdotium, regulates the functions of the priesthood, fixes the 
number of churches and spiritual offices (11. c. 8; iii. concl. 12 and 
21). It authorizes ecclesiastical foundations and corporations (11. 
c. 17). It appoints the individual clergyman, pays him, obliges him 
to a performance of duties, removes him, nay, its consent is necessary 
to every ordination (11. c. 17, 24; iii. 21, 40, 41). It watches over 
the exercise of every spiritual office, to see that it is strictly confined 
to purely spiritual affairs (i. 19; 11. i — 10). All iurisdictio and 
potestas coactiva are exercised immediately and exclusively by the 
wielder of temporal power, even if clerical persons are concerned, or 
matrimonial causes, dispensations, legitimations or matters of heresy 
(11. c. 8; III. c. 12 and 22). Interdicts, excommunications, canoni- 
zations, appointments of fasts and feasts, require, at the very least, 
authorization by the State (11. c. 7, 21 ; ill. c. 16, 34, 35). Only on 
the ground of express commission from the State is it conceivable 
that the churches should have any worldly powers or the decretals 
any worldly force (i. c. 12; 11. c. 28; in. c. 7, 13). Education is 
exclusively the State's affair (i. c. 21; in. c. 25). Appeals and 
complaints to the State Power are always permissible (in. c. 37). 
All Councils, general and particular, must be summoned and directed 
by the State (11. c. 8, 21 j in. c. 33). Church property is in part the 
State's property, and in part it is res nulUus (11. c. 14). In any case 
it is at the disposal of the State, which thereout should provide what 
is necessary for the support of the clergy and for the maintenance of 
worship, and should collect and apply the residue for the relief of the 
poor and other public purposes (n. c. 14 ; in. c. 27, 38, 39). The 
State therefore may freely tax it, may divert the tithes to itself, may 
give and take benefices at pleasure, and for good cause may secularize 
and sell them, 'quoniam sua sunt et in ipsius semper potestate de 
iure' (11. c. 17, 21; in. c. 27). Only what has come from private 
foundations should, under State control, 'conservari, custodiri et 
distribui secundum donantis vel legantis intentionem' (11. c. 14, 
17; III. c. 28). 

327. Joh. Paris, c. 21, pp. 203 — 5: 'est enim licitum principi 
abusum gladii spiritualis repellere eo modo quo potest, etiam per 
gladium materialem : praecipue ubi abusus gladii spiritualis vergit in 
malum reipublicae, cuius cura regi incumbit.' 

328. Thus in Disput. inter mil. et cler. pp. 682 — 6 and Somn. 
Virid. c. 21 — 22, where the confiscation of church property is justified 
(with a strong premonitory suggestion of the 'proprieti de la nation'), 
since the weal and peace of Christian folk certainly are ' pious uses.' 



Notes. 193 

Comp. Joh. Wiclif, Trial p. 407 ff. art. 17, and Joh. Hus, Determinatio 
de ablatione temporalium a clericis, in Gold. i. pp. 232 — 42, where the 
right to secularize church property, at all events in case of abuse, is 
deduced from the nature of government and the subjection of the 
clergy. Joh. Paris, c. 20, p. 203; Nic. Cus. iii. c. 39 and others 
argue in the same manner for the State's right to tax ecclesiastical 
property. So too Quaest. in utramque part. p. 106, ad 17, touching 
statutes of mortmain. 

329. Comp. Nic. Cus. in. c. 8 — 24, 33 and 40 : the temporal The 
power is to take in hand ecclesiastical affairs and to demand and i'-'^'^.^ 
control their reformation, for (11. c. 40) to the State belongs the care reform the 
of all things pertaining ' ad bonum publicum, ' and this is so ' etiam Church, 
in ecclesiasticis negotiis.' Gregor. Heimb. in Gold. i. pp. 559 — 60. 

Peter Bertrand ib. 11. pp. 1261 — 83. Patric. Sen. in. 4. As to the 
practical treatment of the Reform of the Church as an affair of the 
State, see Hiibler, op. cit. pp. 281 — 8 and 318 — 22. 

330. The maxim ' ius publicum est in sacris, sacerdotibus et lus 
magistratibus ' was applied by the prevailing doctrine as a proof of p^" g^iuj 
the state-like nature of the Church ; see Thorn. Aquin. Sum. Theol. Publicum. 
II. I, q. 95, a. 4. But already Ockham, Octo q. iv. c, 6, says that 

many infer from this text that the Emperor ' possit ordinare apostoli- 
cam sedera et archiepiscopos et episcopos,' and also that no 
renunciation of such a 'ius publicum' can have been valid. 

331. See above, Notes 62 — 64. 

332. Thom. Aquin. De reg. princ. i. c. i in fine, Summa Theol. Definition 
11. 1, q. 90, a. 2 — 3 (civitas est communitas perfecta), Comm. ad \^^l^ 
Polit. p. 366 ff. ; Aegid. Rom. in. i, c. i (principalissima com- 
munitas), c. 4, III. 2, c. 32 ; Joh. Paris, c. i ; Eng. Volk. De reg. 

princ. II. c. 2 — 3 ; Mars. Pat. i. c. 4 (perfecta communitas omnera 
habens terminum per se sufiicientiae) ; Ockham, Dial. in. tr. i, 1. 2, 

c. 3—5- 

333. Thus Thom. Aquin. De reg. pr. i. c. i sees civitas, pro- state, 

vincia, regnum, in an ascending scale of self-sufficiency (per se ^^'^^^ 
sufficiens esse). Ptol. Luc. in. c. 10 — 22 and iv. c. i — 28 places Civitas.' 
the priest-kingly, the kingly (including the imperial), the 'political,' 
and the domestic as four grades of Lordship, and in so doing applies 
the name folitia to the civitates which have been expressly defined 
(iv. c. i) as cities that in some points are subject to the Emperor or 
King ; but he then proceeds to use civitas now in this and now in a 
more general sense. The procedure of Aegidius Romanus is clearer: 
for him the civitas is the 'principalissima communitas' only 'respectu 
domus et vici'; the 'communitas regni' is yet ' principalior,' being 
M. 13 



[94 Political Theories of the Middle Age. 



The Im- 
perium as 
the only 
true 
Civitas. 



Legal 
Defini- 
tions of 
Civitas. 



City and 
Republic. 



related to civitas as civitas to vicus and domus (in. i, c. i) ; also he 
declares it highly necessary that, to secure their internal and external 
completion (finis at complementum), various civitates should be 
united in the body of one regnum or in a confoederatio sub uno rege 
(hi. I, c. 4 — 5 ; compare ii. i, c. 2 and m. 2, c. 32). Similarly 
Ockham, Dial. in. tr. i, 1. 2, c. 5 : the 'civitas' is ' principalissima 
omnium communitatum,' but only of those 'siniul in eodem loco 
habitantes'; for the rest, it is subordinated to some ducatus or some 
regnum, which in its turn may be subordinate. In the passages cited 
in Note 64 Dante, Engelbert of Volkersdorf, Augustinus Triumphus 
and Antonius Rosellus presuppose as matter of course that the civitas 
will be completed by some regnum and this by the imperium. 

334. See above. Notes 199 ff. Lupoid of Bebenburg at this 
point adheres closely to the legists; for him (c. 15) kings are 
' magistratus maiores ' who differ from ' praesides provinciae ' merely 
by being hereditary, and who in strictness owe their places to an 
imperial appointment made by way of ' tacit consent ' : so also all 
lower 'magistratus' and the governors of ' universitates, castra, 
villae.' 

335. See the definition of civitas along with urls, oppidum, villa, 
castrum, etc. in Joh. And. c. 17 in Sexto 5, n and c. 17 in Sexto i, 
6, nr. 7; Dom. Gem. c. 17 in Sexto, 5, 11, nr. 3 — 4; PhiL Franch. 
eod. c. nr. 4 — 5; Archid. c. 56, C. 12, q. 2; Earth. Caep. 1. 2, pr. 
Dig. de V. S. nr. i — 28; Vocab. luris v. civitas; Baldus, 1. 5, Dig. 
I, I ; Barthol. 1. i, § 12, Dig. 39, i ; Ludov. Rom. 1. i, § 12, Dig. 
39, I, nr. 12 — 17; Jason, 1. 73, § i, de leg. i. nr. i — 9; Marcus, Dec. 
I. q. 365 and 366. The favourite definitions of civitas leave quite 
open the question whether the State or a commune is intended: 
thus, e.g., ' civium unitas ' or ' hominum multitudo societatis vinculo 
adunata ad simul iure vivendum' or 'humanae multitudinis coetus 
iuris consensu et concordi communione sociatus,' and so forth. 

336. Baldus, Const, i. Dig. pr. nr. 8 : the respublica is sometimes 
Rome, sometimes 'totum imperium,' sometimes 'quaelibet civitas'; 
Cons. V. c. 336 ; Jason, 1. 71, § 5, Dig. de leg. i. nr. 29 ; Barth. Salic. 
1. 4, Cod. 2, 54; Decius, Cons. 360, 403, 468, 564, 638; Joh. de 
Platea, 1. un. Cod. 11, 21, nr. 5; Bertach. v. respublica. Men help 
themselves out of difficulties by the confession that they are using 
words ' improprie.' [Dr Gierke refers to earlier pages in his book in 
which he has dealt with the usage of the glossators (D. G. R. in. 201) 
and later legists (ib. 358). Of the glossators he says that they en- 
deavour to regard the Empire as the only true respublica and to 
maintain that all smaller communities stand ' loco privatorum ' ; but, 
under the shelter of a use of words which tliey admit to be 



Notes. 195 

'improper,' they practically concede political rights to civic com- 
munities.] 

337. This is the procedure of John of Paris, c. x, and other The State 
Frenchmen, who treat ' the Realm ' {regnum) as the abstract State ^seif"foose 
and utterly deny the imperium mundi (above, Note 61). So also from the 
Mars. Pat. and Patric. Sen. (i. 3 ff.) without further definition. ' Empire. 

338. [At this point Dr Gierke refers to earlier parts of his book Communi- 
in which he has illustrated the slow emergence in legal theory of a ^^ ^^^ 
line similar to that which moderns draw between State and Com- Communi- 
mune. The process takes the form of a division of corporations into ^^ ^ot 
two classes : namely, those that do and those that do not ' recognize recognize 
a superior.' He cites (D. G. R. in. p. 382) the following passage rior'^^^ 
from Bartolus, 1. 7, Dig. 48, i, nr. 14: cum quaelibet civitas Italiae 

hodie, praecipue in Tuscia, dominum non recognoscit, in seipsa 
habet liberum populum et habet merum imperium in seipsa et 
tantam potestatem habet in populo quantum Imperator in universo. 
Then the 'universitas superiorem non recognoscens ' began to be 
regarded as being de facto, if not de iure, the respublica and the 
civitas (or, in modern terms, the State) of the Roman texts. But the 
process was gradual. The universitas which does 'recognize a 
superior' will have iurisdictio, and imperium can be acquired by 
privilege or prescription. After the days of Bartolus, says our 
author, we are often given to understand that little importance is 
attached to the old dispute as to whether communities can acquire 
sovereignty de iure as well as de facto. He cites Panormitanus (c. 7, 
X. I, 2, nr. 6) for the admission that sovereign kings and cities have 
imperial rights in their territories.] 

339. Paul. Castr. on 1. i, §§ 1—3, Dig. 3, 4, nr. i, 1. 5, Dig. i, i, No Com- 
lect. 2, 1. 86, Dig. 29, 2, nr. 3, expressly says that, according to Xwe^The 
modern law, every 'populus superiorem non recognoscens' has a real State and 
and true respublica of its own, and other communes have ' largo ^^J^j °'"" 
modo rempubUcam,' while other collegia are only ' partes reipublicae,' below The 
though they have a certain likeness {similitudo) to republics. Simi- 
larly Jason, 1. 19, Cod. i, 2, nr. rs, and 1. i, Dig. 2, i, nr. 18. 
Therefore the notion of a fiscus is claimed for every community 

which does not recognize a Superior and denied to other groups. 
Baldus, 1. r, Dig. i, 8, nr. 19, 1. i, Cod. 4, 39, nr. 22 ; HippoL Mars. 
1. ult. Cod. 3, 13, nr. 189; Lud. Rom. Cons, in ; Bertach. v. fiscus 
dicitur and v. civitas, nr. 23, 46, 133, 135— 7 J Marcus, Dec. i. q. 234 
and 339. 

340. As to the lack that there is in medieval theory of any Federal 
concept of a Federal State {Bundesstaatsbegriff), see S. Brie, der States. 



196 Political Theories of the Middle Age. 

Bundesstaat, I. Leipz. 1874, p. 12 ff. If, besides alliances, mention 
is made of permanent 'ligae et confoederationes ' between 'corpora' 
and ' universitates ' (Bartol. on 1. 4, Dig. 47, 22, nr. 6 — 11; Baldiis, 
s. pac. Const, v. ego, nr. i ; Angel. Cons. 269, nr. i — 2) these are 
considered to have no political quality but to belong to the domain 
of Corporation Law. 
Resistance 341. In the Church the writers of the Conciliar Party resist the 
Central- centralizing trend which is to be seen in the doctrine of the Pope's 
izing Idea Universal Episcopate (as set forth, e.g., by Augustinus Triumphus, 
State.^ I. q. 19, Alvarius Pelagius and Turrecremata, De pot. pap. c. 65), 
and in the derivation of the rights of all other Churches from the 
right of the Roman Church (Dom. Gem. Cons. 14, nr. 2 — 4 and 74, 
nr. 3—6), and in the assertion of the Pope's power of disposition 
over the rights of all particular Churches (Decius, Cons. 341, nr. 8 — 9: 
papa potest dominium et ius quaesitum alicui ecclesiae etiam sine 
causa auferre), and so forth. See Joh. Paris, c. 6 j Petr. de Alliac. in 
Gers. Op. I. pp. 666 fF. and 692 and De eccl. pot. 11. c. i ; Gerson, 
11. p. 256, for the defence on principle of the rights of the particular 
Churches; and, for profounder treatment, see Nic. Cus. 11. c. 13, 
22 — 28; also above, Notes 89, 90. In the State, besides Dante, 
Cusanus and Ant. Rosellus (above. Notes 62 — 64), who hold fast the 
medieval thought of a Community comprising All Mankind, even 
Marsilius, 11. c. 24, upholds both in State and Church the principle, 
of mediate organic articulation (above. Note 89). According to 
Ockham, Dial. iii. tr. 2, 1. i, c. 30, even 'ipsa tota communitas 
Romanorum' ought not to invade the 'iura partialia Romanorum 
personarum vel congregationum seu coUegiorum aut communitatum 
particularium.' Comp. ib. i, 2, c. 28: 'quaelibet privata persona 
et quodlibet particulare collegium est pars totius communitatis, 
et ideo bonum cuiuslibet privatae personae et cuiuslibet par- 
ticularis collegii est bonum totius communitatis.' See also Paris 
de Puteo, Tr. de Synd. p. 40, nr. 20 : Princeps sine causa non 
toUit universitati publicum vel commune sicut nee rem privati: it 
would be rapina. Also we often hear, as part of Aristotle's teaching, 
that the suppression of 'sodalitates et congregationes ' is a mark of 
Tyranny, whereas the 'verus rex' would have his subjects 'con- 
foederatos et coniunctos': Aegid. Rom. in. 2, c. 10; Thorn. Aquin. 
De reg. princ. I. c. 3 ; Somn. Virid. c. 134; Gerson, iv. p. 600. 
Political 342. Of the writers of this group Ptolemy of Lucca is the only 

and^ Feu- "'^^ ^^° comes to close quarters with Feudalism : he develops the 
dalism. thought that while salaried offices are best adapted to a Republic, in- 
feudated offices suit a Monarchy : 11. c. 10; and compare iii. c. 21 — 22. 



Notes. 197 

343- Towards this result both the doctrine of the Prince's All other 
'plenitude of power' and the doctrine of Popular Sovereignty were ^erTv^ed'b 
tending. Aeneas Sylvius, c. 14 — 23, gives to it its sharpest form for Delega- 
the Kaiser's benefit. He goes so far as to declare that an appeal s°"g[g°", 
from Emperor to Emperor and Princes is impossible, and the Power." 
attempt is laesa maiestas; for the 'imperator cum principibus' can 
do no more than the 'imperator solus': — 'araat enim unitatem 
suprema potestas.' 

344. See the notion of ofRce entertained by the Emperor Early 
Frederick II. as formulated in Petr. de Vin. in. 68 : For the fulfil- pffi<='al- 

1 r ..... . ism. 

ment of our divuie mission we must appoint officers, "quia non 
possumus per universas mundi partes personaliter interesse, licet 
simus potentialiter ubique nos'; the officers are rightly 'ad actum 
deducerc.quod in potentia gerimus per eos velut ministros.' See 
also ib. V. c. i ff., 100 — 2, vi. c. 19, 21 — 23. As to the transformation 
by the Hohenstaufen of the infeudated offices in Italy see Ficker, 
Forschungen, 11. pp. 277, 472 ff., 477 flf. See also the notion of 
officium in Thorn. Aquin. De reg. princ. i. c. 15 ; Mars. Pat. i. c. 5, 
7, 15 (the institution of offices and the definition of spheres of official 
competence are matters for the legislature; the appointment, cor- 
rection, payment of officers are matters for the executive power). 
Patric. Sen. in. i — 12. 

345. Thus, e.g., Petr. de Andlo, i. c. 12, relying on the maxim AH Power 
' contra absolutam potestatem principis non potest praescribi,' ex- f/o°^^and 
pressly says that the Emperor can withdraw all public powers from is revo- 
any commune or corporation, no matter the longest usage. He ^j^g |tate. 
recommends that this be done in the case of jurisdictional rights, 

more especially in matters of life and limb, vested in 'plures com- 
munitates, imo castella et exiguae villae terrarum, ubi per simplicis- 
simos rusticos ius reddi consuevit.' — Compare also the rejection of 
'autonomy' in Aegid. Rom. in. 2, c, 27, and indirectly in Thorn. 
Aquin. Summa Theol. n. i, q. 90, a. 3 ; also the power that Marsilius 
accords to the State over ecclesiastical collegia (11. c. 21 and iii. c. 29) 
and foundations (11. c. 17, 21, and ax. c. 28). And see above, 
Note 324.